Articulating the Moral Community: Toward a Constructive Ethical Pragmatism 0190247746, 978-0190247744

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Articulating the Moral Community: Toward a Constructive Ethical Pragmatism
 0190247746,  978-0190247744

Table of contents :
Cover......Page 1
Series......Page 3
Articulating the Moral Community......Page 4
Copyright......Page 5
Dedication......Page 6
Contents......Page 8
Preface......Page 12
PART ONE: Preliminaries......Page 20
Introduction......Page 22
I.1. The Universality of the Moral Community......Page 23
I.2. Illustrative Examples of Decentered Moral Innovation......Page 28
I.3. The Possibility of Indeterminacy-​Reducing Moral Progress......Page 32
I.4. Basic Conditions on How New Moral Norms Can Be Socially Introduced......Page 40
I.5. Preview of the Argument......Page 46
1.1. Characterizing Constructive Ethical Pragmatism......Page 50
1.2. Moral Theory as Having a Practical Role......Page 60
1.3. The Flexibility of Constructive Ethical Pragmatism......Page 67
1.4. Constructive Ethical Pragmatism Will Guide Deliberation Better......Page 75
PART TWO: The Moral Authority of the Moral Community......Page 80
2. The Idea of the Moral Community......Page 82
2.1. Ways of Modeling the Moral Community......Page 83
2.2. Kant on the Ethical Community......Page 88
2.3. Norms to Structure the Moral Community......Page 92
2.4. The Unity of the Universal Moral Community: Thompson’s Challenge......Page 94
3.1. The Specificatory Theory of Dyadic Moral Rights and Duties......Page 104
3.2. Rival Theories of Dyadic Rights and Duties?......Page 108
3.3. Addressing Human Rights......Page 112
3.4. Generalizing the Account to Include Transactional Duties and Private Rights......Page 117
3.5. From Specific Address to the Specificatory Theory of Dyadic Rights and Duties......Page 124
3.6. Objections to the Specificatory Theory......Page 130
3.7. The Specificatory Theory Compared to the Will Theory......Page 133
3.8. The Input Stage......Page 134
4. The Unity of the Moral Community......Page 137
4.1. Bringing Intelligent Beings Together Under One System of Norms......Page 139
4.2. Effacing the Boundaries Between Distinct Practices......Page 140
4.3. Knitting Together Morally Disagreeing Communities......Page 143
4.4. Looking Beyond Individual Human Nature to the Social......Page 145
4.5. Beyond Interacting Intelligent Beings......Page 148
4.6. How All Persons Can Be United in a Single Moral Community......Page 152
5. Introducing New Moral Norms......Page 154
5.1. Selection and Convergence......Page 156
5.2. The Very Idea of Moral Authority......Page 161
5.3. The Moral Community’s Authority Respects Autonomy......Page 164
5.4. New Moral Norms......Page 168
5.5. New Objective Norms......Page 171
6. Working It Out together: Joint Moral Reasoning......Page 173
6.1. Why a New Account of Jointly Embodied Moral Reasoning Is Needed......Page 176
6.2. Generality, Inclusiveness, and Deference to Authority......Page 184
6.3. A Model of Embodied, Joint Moral Reasoning......Page 188
7. Ratification of New Moral Norms......Page 195
7.1. Mutual Recognition of Acceptance......Page 196
7.2. The Problem of Future Persons......Page 203
7.3. Backward-​Looking Awareness......Page 206
7.4. Reasoning in the Ratification Stage......Page 208
7.5. Ratification: Summing up......Page 210
PART THREE: Defending and Extending the Account......Page 212
8. Reasons, Indeterminacy, and Compromise......Page 214
8.1. The Appeal of the Set of First-​Order Reasons......Page 215
8.2. The Moral-​Psychological Objection......Page 220
8.3. Reasoning in Terms of Ends......Page 224
8.4. The Role of Commitments......Page 230
8.5. Compromise: Working Things Out Together......Page 231
8.6. Reasons and Reasoning......Page 235
9. Noneternal Moral Principles......Page 237
9.1. Cudworth’s Essentialist Argument for Moral Rationalism......Page 238
9.2. Cohen’s Argument Against Fact-​Sensitive Principles......Page 245
9.3. Working with Moral Principles in Medias Res......Page 254
10. Objectivity and Path-​Dependence......Page 257
10.1. A Working Conception of Moral Objectivity......Page 260
10.2. Objectivity in the Introduction of New Moral Norms......Page 264
10.3. Path-​Dependence......Page 266
10.4. Retrospective Moral Judgment......Page 269
10.5. Taint by Actual Injustice and Corruption......Page 275
C.1. Results of the Argument......Page 279
C.2. Implications for Constructive Ethical Pragmatism......Page 283
C.3. Broadening the Argument’s Reach......Page 286
C.4. The Significance of These Conclusions......Page 290
References......Page 294
Index......Page 308

Citation preview

A R T I C U L AT I N G T H E   M O R A L C O M M U N I T Y

OXFORD MORAL THEORY Series Editor David Copp, University of California, Davis Drawing Morals Essays in Ethical Theory Thomas Hurka Commonsense Consequentialism Wherein Morality Meets Rationality Douglas W. Portmore Against Absolute Goodness Richard Kraut The Lewd, the Rude and the Nasty Pekka Väyrynen In Praise of Desire Nomy Arpaly and Timothy Schroeder Confusion of Tongues A Theory of Normative Language Stephen Finlay The Virtues of Happiness A Theory of the Good Life Paul Bloomfield Having It Both Ways Hybrid Theories and Modern Metaethics Edited by Guy Fletcher and Michael Ridge

Motivational Internalism Edited by Gunnar Björnsson, Caj Strandberg, Ragnar Francén Olinder, John Eriksson, and Fredrik Björklund The Meaning of “Ought” Beyond Descriptivism and Expressivism in Metaethics Matthew Chrisman Practical Knowledge Selected Essays Kieran Setiya Articulating the Moral Community Toward a Constructive Ethical Pragmatism Henry S. Richardson

ARTICULATING THE MORAL COMMUNITY Toward a Constructive Ethical Pragmatism

Henry S. Richardson

1

1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2018 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-in-Publication Data Names: Richardson, Henry S., 1955– author. Title: Articulating the Moral Community : Toward a Constructive Ethical Pragmatism / Henry S. Richardson. Description: New York : Oxford University Press, 2018. Identifiers: LCCN 2018001345 | ISBN 9780190247744 (hardcover) | ISBN 9780190247768 (online component) | ISBN 9780190884635 (e book) Subjects: LCSH: Applied ethics. | Ethics, Modern. | Pragmatism. | Communities. Classification: LCC BJ1031 .R53 2018 | DDC 171/.7—dc23 LC record available at https://lccn.loc.gov/2018001345 9 8 7 6 5 4 3 2 1 Printed by Sheridan Books, Inc., United States of America

For Mary—​my articulate muse

CONTENTS

Preface

xi

PART ONE:  Preliminaries

Introduction

3

I.1.  The Universality of the Moral Community  4 I.2.  Illustrative Examples of Decentered Moral Innovation  9 I.3.  The Possibility of Indeterminacy-​Reducing Moral Progress  13 I.4.  Basic Conditions on How New Moral Norms Can Be Socially Introduced  21 I.5.  Preview of the Argument  27 1. Constructive Ethical Pragmatism 1.1.  Characterizing Constructive Ethical Pragmatism  31 1.2.  Moral Theory as Having a Practical Role  41 1.3.  The Flexibility of Constructive Ethical Pragmatism  48 1.4.  Constructive Ethical Pragmatism Will Guide Deliberation Better  56

31

PART T WO :   The Moral Authority of the Moral Community

2. The Idea of the Moral Community 2.1.  Ways of Modeling the Moral Community  64 2.2.  Kant on the Ethical Community  69 2.3.  Norms to Structure the Moral Community  73

63

v i i i   • 

Contents

2.4.  The Unity of the Universal Moral Community: Thompson’s Challenge  75 3. Authoritative Input: Dyadic Duties and Rights 85 3.1.  The Specificatory Theory of Dyadic Moral Rights and Duties  85 3.2.  Rival Theories of Dyadic Rights and Duties?  89 3.3.  Addressing Human Rights  93 3.4.  Generalizing the Account to Include Transactional Duties and Private Rights  98 3.5.  From Specific Address to the Specificatory Theory of Dyadic Rights and Duties  105 3.6.  Objections to the Specificatory Theory  111 3.7.  The Specificatory Theory Compared to the Will Theory  114 3.8.  The Input Stage  115 4. The Unity of the Moral Community 4.1.  Bringing Intelligent Beings Together Under One System of Norms  120 4.2.  Effacing the Boundaries Between Distinct Practices  121 4.3.  Knitting Together Morally Disagreeing Communities  124 4.4.  Looking Beyond Individual Human Nature to the Social  126 4.5.  Beyond Interacting Intelligent Beings  129 4.6.  How All Persons Can Be United in a Single Moral Community  133

118

5. Introducing New Moral Norms 5.1.  Selection and Convergence  137 5.2.  The Very Idea of Moral Authority  142 5.3.  The Moral Community’s Authority Respects Autonomy  145 5.4.  New Moral Norms  149 5.5.  New Objective Norms  152

135

6. Working It Out together: Joint Moral Reasoning 6.1.  Why a New Account of Jointly Embodied Moral Reasoning Is Needed  157 6.2.  Generality, Inclusiveness, and Deference to Authority  165 6.3.  A Model of Embodied, Joint Moral Reasoning  169

154

Contents  • 

7. Ratification of New Moral Norms 7.1.  Mutual Recognition of Acceptance  177 7.2.  The Problem of Future Persons  184 7.3.  Backward-​Looking Awareness  187 7.4.  Reasoning in the Ratification Stage  189 7.5.  Ratification: Summing up  191

ix

176

PART THREE:   Defending and Extending the Account

8. Reasons, Indeterminacy, and Compromise 8.1.  The Appeal of the Set of First-​Order Reasons  196 8.2.  The Moral-​Psychological Objection  201 8.3.  Reasoning in Terms of Ends  205 8.4.  The Role of Commitments  211 8.5.  Compromise: Working Things Out Together  212 8.6.  Reasons and Reasoning  216

195

9. Noneternal Moral Principles 9.1.  Cudworth’s Essentialist Argument for Moral Rationalism  219 9.2.  Cohen’s Argument Against Fact-​Sensitive Principles  226 9.3.  Working with Moral Principles in Medias Res  235

218

10. Objectivity and Path-​Dependence 10.1.  A Working Conception of Moral Objectivity  241 10.2.  Objectivity in the Introduction of New Moral Norms  245 10.3.  Path-​Dependence  247 10.4.  Retrospective Moral Judgment  250 10.5.  Taint by Actual Injustice and Corruption  256

238

Conclusion C.1. Results of the Argument  260 C.2. Implications for Constructive Ethical Pragmatism  264 C.3. Broadening the Argument’s Reach  267 C.4. The Significance of These Conclusions  271

260

References

275

Index

289

P R E FA C E

This project’s origin traces to a question that my graduate-​school friend Andreas Føllesdal asked me three decades ago. I was then in the midst of working on an article about the idea of specifying norms, thought of as an alternative way of bringing moral norms to bear on situations of choice—​one more flexible than deductively subsuming cases under rules and more readily made explicit than intuitively balancing opposing considerations.1 Andreas told me that this alternative model sounded attractive, but he had a question: Who gets to specify moral norms? This book provides a long-​delayed answer to this insightful question: we do, as equal members of the moral community, which embraces all persons. More specifically, we do, as individuals to whom responsibilities for promoting or protecting certain rights of others are specifically addressed. Once I had come to this conclusion, however, I saw that answering Andreas’s question opened up a broader and more exciting philosophical possibility. Supposing that concrete opportunities arise for authorizedly specifying moral norms for the purposes of resolving particular practical difficulties raised intriguing further questions about what would become of those efforts. Would they have any uptake? And if they did get uptake, what might that mean for the content of morality? As I  pursued these further questions, I  came to see how these particular exercises of special authority could constitute the moral community’s initial steps toward adopting new, objectively valid moral norms. These individual or local efforts represent an appropriately decentered initial source of the moral community’s moral authority. In this promising idea, I thought I saw the prospect of reconciling the objectivity of morality with the possibility that we can have a hand in shaping it over the contingent course of history. You will have to judge whether I have succeeded in this aim.

1. This work appeared a few years later (Richardson 1990b).

x i i   • 

Preface

Attempting to make good on the promise of these ideas required clarifying the concept of the moral community and nailing down why it is that those specially addressed with responsibilities regarding certain others’ rights have the moral power that Andreas was curious about—​the moral power to specify rights and duties.2 Dealing with these issues brought me straight to the heart of contemporary philosophical debates about the nature of dyadic rights and duties—​rights against certain others and duties owed to certain others. That material makes for some difficult going at the start of Part II, but it is the key not only to answering Andreas’s initial question, but also to understanding the nature of the moral community and grasping the possibility of its exercising its moral authority to establish new moral norms. Years after Andreas asked me his question, and yet long before I  began to attempt to answer it, I had written a promissory note extoling the virtues of an undiscussed and largely unexplored type of moral theory, one that I called “constructive ethical pragmatism” (Richardson 1995). This type of theory—​as I will explain again in the body of this book, reviving a distinction that has come to be questioned—​rejects the idea that moral theory should treat either the right or the good as independently fixed, whether by taking right actions to be determined solely on the basis of some function of what is better or worse, or by taking it that which actions are right can be determined wholly independently of the good. Rather, I suggested, constructive ethical pragmatism (CEP) treats the right and the good as each being revisable in terms of the other. Yet here we encounter Andreas’s question on a larger scale: Who gets to revise the right and the good? This book does not develop or fully defend CEP; but it does explain the attractions of that kind of moral theory in order to further motivate the book’s pursuit of an account of the moral community’s moral authority. As a whole, we might say, the book offers the crucial part of the groundwork of the metaphysics of CEP. It does so by explaining how we, as the members of the moral community, can revise principles of right by further specifying them. The philosophical value of this book is revealed only once all the elements of its account of moral authority are in place. This fact has made its bits and pieces, inapt for journal publication. I hope that, nonetheless, even if its overall theses do not convince, its discussions along the way of the moral community and its unity, dyadic rights and duties, joint moral reasoning, moral indeterminacy, moral psychology, moral justification, and moral objectivity will each be found of interest, independently of their contribution to the overall enterprise.

2. In paradigmatic cases, as I will explain, these duty-​holders will exercise this power jointly with the corresponding right-​holders.

Preface  • 

xiii

Having had little benefit of responses to published trial balloons, I  am especially indebted to the many people who have posed questions and offered comments and suggestions along the way—​beginning, of course, with Andreas Føllesdal, and including, I am afraid, many whose contributions I have failed adequately to record. I begin by acknowledging my deep debt to three extraordinary teachers whose influence still reverberates here: Hilary Putnam, who first suggested that I take a serious look at Dewey’s pragmatism; Martha C. Nussbaum, who taught me Aristotle and whose reading of his moral psychology shapes my approach to it; and John Rawls, with whom I  discussed how the distinction between the right and the good might map onto Aristotle’s ethics, and whose Theory of Justice is a model of how to specify norms by weaving the right and the good coherently together. Support for two research leaves made the writing of this book possible. In 2008–​2009, I  was the grateful recipient of a Georgetown University Senior Faculty Research Fellowship, a Fellowship for University Teachers from the National Endowment for the Humanities, and a two-​month visiting fellowship at the Philosophy Program of the Research School for Social Sciences in Canberra, Australia, which was a stimulating yet relaxing environment for exchanging ideas about moral philosophy and evolution of social norms. The manuscript took roughly its current form during a sabbatical year in 2012–​2013, which I blissfully spent as a Laurence S. Rockefeller Visiting Fellow at the University Center for Human Values at Princeton University. Back at Georgetown University in the two succeeding years, I then benefited from the extraordinary support of Georgetown’s Normative Orders Collaborative, an initiative of the university’s president, John J. DeGioia, himself a philosopher with a deep interest in moral progress. In 2014–​2015, this initiative sponsored a yearlong Moral Innovation Seminar that I led with my colleague Terry Pinkard, and at which we hosted a world-​class string of visiting presenters. The visitors whose presentations most influenced this book were Kyla Ebels-​Duggan, Rainer Forst, Barbara Herman, Rahel Jaeggi, Anja Karnein, Charles Larmore, Christoph Menke, and Robert Pippin. I am also thankful to the regular attenders of this seminar for their comments on my own presentations, especially Michael Barnes, Gabriel Broughton, Clark Donley, Hailey Huget, Matthew Shields, Daniel Threet, Molly Wilder, and my cocaptain, Terry. In the preceding semester (spring 2014), with the idea of preparing graduate students for the coming Moral Innovation Seminar, I  taught a graduate seminar on authority, in which I  assigned the book manuscript as it then stood. This gave me my first feedback on a reasonably complete version of the project. I  am very grateful to all the graduate students who participated, from whom I learned a lot.

x i v   • 

Preface

As a kind of capstone to this seminar, at the end of that semester, the Normative Orders Collaborative sponsored a daylong workshop on the book manuscript. It was daunting and thrilling to have challenging and varied criticism from three brilliant commentators: Michael Smith, Talbot Brewer, and Margaret O. Little. I was also proud of, and grateful for comments from, my Georgetown colleagues and students (past and present) in attendance, especially Mark Lance, Judith Lichtenberg, James Mattingly, Matthew McAdam, Mark Murphy, and Travis Rieder. The early version of the complete manuscript that formed the basis of this workshop also went to Oxford University Press. It came back to me with three fantastically useful sets of comments—​one of which, I  now know, was from Anthony Laden. Roughly at the same time, I  received an even more detailed and probing set of comments on almost the whole manuscript from Gabriel Broughton, who at the time was about to begin studying toward a PhD in philosophy. This wealth of constructive and insightful criticism led eventually to deep revisions in the book’s order and argument. My first attempt to put forward the ideas developed here had come years before, in 2004, at the First Annual Metaethics Workshop at the University of Wisconsin at Madison, and the following year at the Workshop on Rights at Tulane University’s Murphy Institute, at the University of Amsterdam, and at the Fourth Moral Philosophy Conference in Granada, Spain. I am thankful for valuable input on all these occasions, as well as at subsequent presentations at Georgia State University, the 75th anniversary conference of Theoria in Stockholm, the OSU-​Maribor-​Rijeka Conference in Dubrovnik, and the University of Delaware. I am particularly grateful to Charles Beitz, Rüdiger Bittner, Michael Bratman, John Broome, David Copp, Stephen Darwall, Govert den Hartogh, James Dreier, William Edmundson, Gerald Gaus, Joshua Gert, James Griffin, Richard Hanley, Ulrike Heuer, Donald Hubin, Nadeem Hussain, Eric Mack, Marina Oshana, Philip Pettit, Wlødek Rabinowicz, George Rainbolt, Jonathan Riley, Connie Rosati, Gideon Rosen, Daniel Rothstein, Geoffrey Sayre-​McCord, John Skorupski, Michael Smith, Horacio Spector, Gopal Sreenivasan, Hillel Steiner, Bruno Verbeek, and Leif Wenar. Others who offered valuable advice during this early stage included Christian Barry, Geoffrey Brennan, Lina Ericksson, Robert Goodin, John F.  Horty, Steven T.  Kuhn, Rebecca Kukla, Mark Lance, Daniel Levine, Margaret O.  Little, Mark C.  Murphy, Thomas Pogge, and Nicholas Southwood. As I proceeded, I got invaluable help with various developing parts of the book. I presented an earlier version of the material now spread out over c­ hapters 2–​4 at a workshop on rights in 2012 at Stirling University, the fellows’ seminar at the

Preface  • 

xv

University Center for Human Values at Princeton, the Social Norms Conference at the University of Tennessee at Knoxville, the Philosophy Department of the University of Vienna, and the Eighth Moral Philosophy Conference in Rungsted, Denmark. At these occasions and others in 2012–​2013, I was lucky to get valuable advice and criticism from Elizabeth Ashford, John Broome, Tom Campbell, Sophie-​Grace Chappell, Alexandra Couto, Adam Cureton, Jonathan Dancy, Stephen Darwall, Yuval Elon, Kimberly Kessler Ferzan, Jon Garthoff, Stefan Gosepath, Christoph Hanisch, Alon Harel, Elizabeth Harman, Tim Hayward, Christopher Heathwood, Marcus Hedahl, Bennett Helm, Tom Hill, Brad Hooker, Simon Hope, Peter Jones, Frances Kamm, Felix Koch, Douglas McLean, John Nolan, Marina Oshana, Mike Otsuka, Allen Patten, Herlinde Pauer-​Studer, Philip Pettit, Wlødek Rabinowicz, Tom Sinclair, Hillel Steiner, Jesse Tumulty, Alex Voorhoeve, and Susan R. Wolf. I am particularly grateful to Rowan Cruft and Leif Wenar for continued (and, I hope, ongoing) interchange about the nature of dyadic rights and duties—​a topic that they have each well illuminated and that I approach from a heterodox angle. Some other chapters have also benefited from focused comments. I recently received invaluable advice and objections from James Dreier, Douglas Portmore, and S. Andrew Schroeder on my discussion of consequentializing in ­chapter 1. The framing of my discussion of moral psychology in ­chapter 8 owes a lot to a long lunchtime conversation with Michael Smith in 2012. The core argument of ­chapter 9 was tried out at a workshop on moral rationalism that Smith organized at Princeton that same year, where particularly telling points were made by Elizabeth Harman, Tristram MacPherson, Mike Otsuka, Philip Pettit, and R. Jay Wallace. And early thoughts toward ­chapter 10 received valuable comments in 2008 at the Philosophy Department Faculties Seminar at the Australian National University in Canberra, and at the University of Zurich as well. Much more recently, I  have gladly garnered useful input on this book’s arguments from comments on a paper still in progress on law and morality: at Stefan Gosepath’s Kolloquium at the Free University, Berlin, including from Valentin Beck, Tamara Jugov, Felix Koch, Ralph Wedgwood, and Prof. Gosepath; at Rainer Forst’s Kolloquium at the Goethe University, Frankfurt, including from Gabriele Badano, William Barbieri, Eva Buddeberg, Dorothea Gädeke, Klaus Günther, and Prof. Forst; and at another workshop on rights at Stirling University, including from Rowan Cruft, Pavlos Eleftheriadis, and Carol Gould. During the last nine years of working on this book, I have had the privilege of being the editor of Ethics. This responsibility has perhaps slowed down my writing, but it has more than compensated for that by immeasurably broadening

x v i   • 

Preface

and deepening my acquaintance with the amazing range of exciting and creative work being done in contemporary philosophical ethics. None of this work would have been possible without the support of my beloved wife, Mary Challinor, from whom I  have learned most of what I  know about working things out together with someone, and, even more rewardingly, about the full depth and the potential joys of commitment.

A R T I C U L AT I N G T H E   M O R A L C O M M U N I T Y

I

PRELIMINARIES

INTRODUCTION

In response to our changing circumstances, our moral norms appear to be constantly adapting. They stretch and ramify as we confront the possibility of human genetic enhancements, debate just ways of allocating the burdens of climate change, attempt to articulate moral constraints on the conduct of counterinsurgency warfare, and consider other newly prominent moral issues. On a suspiciously self-​ congratulatory reading of what is happening, our moral views are becoming ever more discerning. A rather more sober view has it that the various adaptations are simply conventional supplements to whatever skeleton of universal, objective morality there may be. While this sober understanding is the more credible of these two, its free-​handed appeal to convention threatens to undercut its supposed recognition of a skeletal moral objectivity. There is a third possibility, though, which is that at least some of the novel moral adaptations involve the objectively authorized exercise of moral authority—​changes that build on morality’s objective core and adding to morality’s objective content. Developing this third possibility is this book’s direct aim and its explicit focus. It sets out an account of how we, working together in certain ways as members of the moral community, can fill out the objective content of morality by authorizedly narrowing its zones of indeterminacy. The book also has a secondary aim. Indirectly, it seeks to defend a viable alternative to consequentialist moral theories: one that I sketched some time ago, calling it “constructive ethical pragmatism” (Richardson 1995). Uniting the book’s direct and indirect aims is its effort to argue that our everyday, ongoing moral practices, imperfect though they are, provide an adequate basis for moral reflection that enables us intelligently and conscientiously to work out what we morally ought to do.1 In practice, we have little choice but to begin our

1. I am indebted to an anonymous reviewer for this formulation.

4   •  I n t r o d u c t i o n

moral reflections in the middle of things. Both the book’s central, direct effort to develop an account of our moral authority as members of the moral community and its indirect defense of constructive ethical pragmatism (CEP) help explain how moral reflection beginning in medias res can generate objective moral conclusions, including some having a general constitutive effect on what is right and wrong. It is only as members of the moral community that we can exercise moral authority of this kind. The distinctive, defining element of the idea of the moral community is that it is the community of all persons. The reason that this feature is distinctive to morality is that moral norms, unlike the norms of prudence, law, or statecraft, purport to be valid for, and to bind, all persons.2 Starting from a recognition of this fact, it is possible to develop two divergent interpretations of the idea of morality.3 On a purely descriptive interpretation, the morality of a given society consists of the set of norms that, in that society, are taken to be binding upon all persons. (According to many, understandings of morality are also distinguished by their claim to be putting forward overriding reasons for action.) Although this purported universality will thus help distinguish morality from other codes of conduct, such as etiquette or the rules of games, it remains fully possible, on this descriptive reading, for different societies to have quite different moralities. On a normative interpretation, by contrast, morality consists in the set of norms that do bind all persons.4 The normative interpretation does not fit well with the idea that different societies have different moralities. It is with morality on this second, normative interpretation that this book is concerned.

I.1 The Universality of the Moral Community The universal bindingness of morality sets this book’s task. What it takes for norms to bind all persons is, of course, the subject of the most central and

2. Compare with Bernard Gert’s statement (2005, 13): “Morality is an informal public system that applies to all rational persons.” 3.  The importance of this distinction between two ways of understanding morality is emphasized in Gert (2012). 4. So to interpret morality clashes to some extent with moral particularism, which questions whether there are any true or defensible moral principles: see, e.g. Dancy (1993, 2004). I will shortly be softening this clash, however, by distinguishing between moral principles and whatever the ultimate truth-​makers of moral claims may be. In addition, given the stress laid on moral psychology in Dancy (2013), I should also note that the moral psychology of principled commitment that I  develop in ­chapter  8 does not view deliberation as proceeding by subsuming cases under principles, and it builds in a central role for perception—​which could and should be finely tuned and sensitive.

  I.1 Universality  • 

5

longest-​lasting controversy of moral philosophy. I do not enter deeply into that controversy here, which concerns—​as it is sometimes put—​the authority of morality itself. Rather, I suppose that there is a universal, objective core to morality the truth or validity of which is independent of our beliefs about which norms bind all persons, and concentrate on attempting to explicate how we can exercise authority in a way that modifies what morality in fact requires. We can say, though, what it means for morality’s norms to bind all persons. It means that morality is not sensitive to people’s particular identities. It may be quite sensitive to specific facts about people, such as that they have children, have certain “ground projects” (Williams 1981, 13) or identity-​defining commitments, have made certain promises or are citizens of a reasonably just democracy; but it is not sensitive to the particular identities that distinguish one person from another. To say that morality’s norms are universally binding, then, is to say that they overlook the particular identities of persons. This distinguishes morality from, say, the legal norms of some jurisdiction or another, which bind only those identifiable by the particular characteristic of being citizens or residents of that jurisdiction.5 This claim that morality is insensitive to particular identities can be defended in three complementary ways: as an implication of the concept of morality, as an implication of the relationship between moral properties and ordinary prescriptive properties, and as a fundamental normative commitment. R. M. Hare most fully developed the first sort of defense of what he called the “universalizability” of moral judgments, which he claimed to draw from an analysis of the concept of morality. As he put it, “[I]‌f we make different moral judgments about situations which we admit to be identical in their universal descriptive properties, we contradict ourselves” (Hare 1981, 21).6 The metaphysical view supporting this thought is the widely accepted idea that moral judgments supervene on descriptive properties: there is no moral difference between cases without there being a difference in their universal descriptive properties.7 Reinforcing these conceptual and metaphysical grounds for taking moral judgments to be universal with respect to the set of particular persons involved is a normative condition of anonymity parallel to that introduced by Kenneth May in the context of voting

5. As A. John Simmons has famously insisted, many attempted accounts of the obligation to obey the law come to grief because they have difficulty incorporating this element of particularity into an account that otherwise has a moral basis. See, e.g., Simmons (2005, 166–​179). 6. For a similarly abstract interpretation of the thesis that all values are either universal or subsumable under universal values, see Raz (2001b, 46–​60). 7. These first two grounds may not actually be distinct: Jonathan Dancy writes that Hare (1991) “uses the term ‘universalizability’ to mean what most people mean by ‘supervenience’ ” (Dancy 1993, 258).

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theory.8 In this vein, we might say that a moral judgment satisfies the anonymity condition just in case the judgment does (or would) remain unchanged through all possible variations of the particular identities of the persons occupying the various descriptively identified positions made relevant by the judgment—​including features of the individuals’ psychologies, if these are relevant. For all these reasons, then, it is appropriate to think of moral judgments as applying to all persons. Although I am not purporting to give an exhaustive characterization of morality, then, I am thinking of it as involving a set of norms valid for, or binding on, all persons. To characterize morality this way is to stick fairly closely to the way that we experience it as agents. Accordingly, this normative characterization of morality contrasts not only with the sort of merely descriptive characterization already mentioned, but also with philosophical attempts to push more deeply so as to directly characterize the ultimate (and perhaps timeless) truth-​conditions or truth-​makers of moral statements. In my own view, we have at best only a highly fragmentary window on these, largely via the moral norms that we find acceptable on reflection. From this, I infer that we have no firm knowledge about the relationship that may hold between morality’s ultimate truth-​conditions and the moral principles that are validly binding on us. I  recognize, however, that this is a controversial view, and one for which I have not argued—​although I would note that it clashes with the principle that “ought” implies “can” to hold that moral provisions of which we are all ignorant validly bind our actions. About the ultimate truth-​conditions or truth-​makers of morality, then, I will simply assume that—​depending on their form—​they either include or accommodate second-​order principles that authorize the moral community to further specify certain of morality’s valid norms. As I shall discuss further in ­chapter 9, even rationalist forms of moral realism, on which all moral truths trace to a priori or eternal principles, seem perfectly compatible with the view that I defend in this book, which argues that new moral norms can result from authorized changes. The second-​order principles that I assume to be included in or accommodated by morality’s ultimate truth-​makers would assure this compatibility. Once it is clear that the moral community is the community of all persons, it is immediately obvious that it is difficult for the moral community to find its voice so that it might speak authoritatively. Thomas Hobbes’s social contract

8.  Cf. Sen (2017, 118), about May (1952). May’s anonymity condition involved permuting individuals’ preferences among the set of particular persons. Whether all descriptive characteristics can coherently be permuted among the set of particular persons is a question I will not broach, except to note Hare’s suggestion “that ‘I’ is not wholly a descriptive word but in part prescriptive” (1981, 96).

  I.1 Universality  • 

7

theory has accustomed us to thinking of each political community as being forged by creating a unified sovereign wielding at least a sword, if not also a crosier. Establishing a unified world state of this kind, uniting all human persons, would be a difficult undertaking of dubious worth. Even if it were accomplished, it would not well serve as a basis for moral community. For one thing, the sorts of strategic consideration that serve, in Hobbesian arguments, to rationalize (and perhaps to legitimize) instituting a unified sovereign are too lax to pass muster as conditions of legitimacy for the moral community. For another, as liberals such as Immanuel Kant and J. S. Mill have emphasized, important parts of the domain of morality are not properly the subject of coercive sanctions. That being so, it is a mistake to draw too heavily on the analogy to a political sovereign’s legal power. Finally, as I shall be emphasizing in ­chapter 4, the very idea that the moral community might be modeled on the basis of a political community of global reach understates the essential openness of the moral community’s boundaries. The moral community includes all persons, wherever they may be found. The analogy to politics thus is no help in modeling how the moral community may act in a unified way. How it may do so is not easy to conceive. Accordingly, “articulating the moral community,” as understood via the metaphor of voice, names this book’s primary subject. The problem is to conceive of how an open-​ ended society of all persons might be so arranged as to find an authoritative voice, as it were. The incoherence of viewing morality as a whole as being unified on the basis of coercively backed institutions such as a political constitution effectively guarantees that this problem cannot be solved for morality the way it is for democracies, via the use of the election of representatives, majority rule, and contestatory mechanisms. While accounting for the possibility of moral authority thus faces some constraints not faced by accounts of political authority, the latter faces one important constraint that the former does not. Accounts of political authority typically attempt to shoulder the burden of establishing that a regime meeting the named conditions is empowered to issue authoritative directives across a very broad range of competence.9 To be sure, all accounts will imply that there are some limits to legitimate and authoritative government action; but most accounts of political authority aim to show how, within those limits, governments may authoritatively act on a huge range of potential issues, from environmental regulation to military intervention, from tax policy to establishing national holidays. Thus, in political philosophy, the problem of authority involves showing how

9. An exception is Raz (1986; see esp. chap. 4).

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a given nation’s institutions, geographically and historically located, can garner such wide-​ranging authority. My claim about moral authority, by contrast, is that it can be exercised by the moral community for this or that issue. It may be episodic, and it may exist only with regard to relatively isolated issues. Without attempting to gauge the extent of moral authority, this book argues for the possibility that, with regard to some important moral questions, the moral community can exercise the authority to introduce new moral norms. Further, although this book will characterize the kinds of social practices and processes that are needed to make such moral innovation possible, it does not claim that any persistent, unifying institutional seat of moral authority exists. Hence, whereas accounts of political authority seem to call for an explanation of wide-​ranging authority, an account of moral authority can aptly concern itself with episodic and isolated instances of authority; and whereas accounts of political authority seem to call for explaining how a particular nation’s actual, historically contingent institutions can persistently exercise such general authority across a wide range of issues, an account of moral authority need not tie itself to particular sets of institutions that persist over time. Constructive ethical pragmatism, the alternative type of moral theory that it is this book’s secondary aim to defend, will help us imagine how the moral community might become articulate. A proper presentation of this approach will have to wait until c­ hapter 1. Here, I will just say enough about it to indicate how the book’s primary and secondary aims are connected via the idea of beginning in the middle of things. CEP is an approach to moral theory that offers an attractive alternative to consequentialism, deontology, and virtue theory. While, like typical versions of the first two, it remains focused on questions about right actions, it steers between them. It denies that it is reasonable to expect to find a characterization of the good sufficiently firm or unified to ground sound consequentialist reasoning—​whether of the satisficing or maximizing kind. It also denies that we have any reasonable hope of characterizing principles of right action that are sufficiently complex and qualified to be used as our sole basis for determining what we morally ought to do (which is what deontology, as I propose to define it, claims to be able to do).10 10. I thus define “deontology” more narrowly than does Rawls. He glosses it as a moral theory “that either does not specify the good independently from the right, or does not interpret the right as maximizing the good” (Rawls 1999b, 26). In these terms, I understand consequentialism, along the lines of Rawls’s “teleology,” as specifying—​or giving a substantive account of—​the good independent of the right, and then interpreting the right as maximizing or satisficing its attainment. I understand deontology as specifying the right independent of the good, and as insisting that the constraints of right suffice to settle how we may permissibly pursue the good, whatever it is. The CEP that I will defend does not seek to specify either the good or the right independently of the other—​a possibility that Rawls leaves open as a

  I.2  Examples of Moral Innovation  • 

9

Despite starting from both of these denials, the ethical pragmatism that I defend avoids moral nihilism and becomes constructive—​not “constructivist,” for this is a first-​order view—​by explaining how we can, in substantively specialized and disciplined ways, work out fuller conceptions of the good and the right in light of each other. In doing this, we begin in the middle of things, within moral practices that have a definite shape. These are intelligible to us in part by reference to moral principles and moral goods whose significance we recognize or assume (see Raz 1999, 173). If we had to break completely free from these initial commitments to attain objective results, we would be stymied. If, however, we can proceed by revising our initial commitments about the right in light of those pertaining to the good, and vice versa, then, I argue, we can make objective progress.

I.2 Illustrative Examples of Decentered Moral Innovation The picture that emerges will be one in which, in sharp contrast with legitimate democratic arrangements, the moral community’s authority to introduce changes in objective morality is structured in an essentially decentered way. Innovative moves will arise, initially, as a result of the way in which the existing moral norms differentially allocate special moral responsibilities. As things proceed from there, existing institutions of one kind or another may or may not play a role in facilitating the convergence of social practice on a generally accepted approach to the relevant aspect of fulfilling these special responsibilities. As initial examples of the kind of social processes I am talking about, I offer two examples. In the first of these, partially based on fact, a global institution played this kind of facilitative, nonauthoritative role. In the other, convergence toward a generalized practice would have to be more informal. As a first example of how a novel moral norm can arise, I offer a fictionalized version of how an actual candidate moral innovation arose, as input toward the possible exercise of general moral authority. It is the case of a fictitious Dr. Jones: Dr.  Jones’s principle about the use of placebo controls: In 1999, Dr.  Jones, a leading American researcher on antiretroviral medications, was the

characterization of his own view, justice as fairness, in labeling it as deontological according to his disjunctive gloss. Barbara Herman (1993) prefers to define “deontology” more narrowly, as do I.

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principal investigator on a range of drug trials that were to be conducted, at the end of the last century, in Africa. Reading Marcia Angell’s landmark editorial in the New England Journal of Medicine had sensitized her to the dangers of exploiting Third World research subjects by taking advantage of their low expectations of their health-​care systems (see Angell 1997). As a result, Dr.  Jones was wary of designing trials that involve a placebo control arm, given that there already existed proven antiretroviral medications. She did not want to be guilty of proceeding with a double standard—​one standard of human immunodeficiency virus (HIV) care for people in the United States and another in Africa. Yet she was troubled by the fact that, in practice, the antiretroviral regimes available in the United States were (in 1999) too expensive and difficult to administer for them to be a real option in the countries where she was conducting her research. In fact, the majority of HIV sufferers in the communities in which she planned to work were getting no drug treatment at all for the disease. Hence, using these proven drugs for the control arm had the disadvantage of not really telling her what difference her new drugs might make in the communities where she planned to work. And she did not want simply to pull out of those countries, as the strain of the HIV virus prevalent in Africa is distinctive and urgently needed study. This issue was too new and too controversial for the Research Ethics Committees to which she submitted her protocols for ethics review to offer her any guidance. On her own, she settled on the following policy for all of the trials: “Where proven treatments exist, we ought to avoid the use of placebo control arms unless a central aim of the study is to test whether a relatively cheap and affordable treatment would be better for the HIV sufferers in the host community than would no treatment at all.” About this policy, I take it, we have little impulse to suggest that this already, eternally or always, was a norm of morality. Now, different researchers in her position will come to different views about this. It is not conceptually necessary for a uniform moral answer to be adopted; but in a case like this, which was very troubling and controversial, it can also be unsatisfactory to declare that those who already hold most of the resources and knowledge are simply permitted wide latitude. Hence, there was some moral reason for the moral community to come to consensus on a principle dealing with this issue. To continue the story of how a new moral norm might get established in a case such as this, I move from fiction to fact. A few years after the one in which I have set the decision of my hypothetical Dr. Jones, this issue of what standard of care is appropriate to insist upon in the control arm of clinical trials in developing

  I.2  Examples of Moral Innovation  • 

11

countries was taken up by the Council for International Organizations of Medical Sciences (CIOMS). The council, an international nongovernmental organization affiliated with the World Health Organization, has issued three editions of International Ethical Guidelines for Biomedical Research Involving Human Subjects.11 The first set of CIOMS guidelines was intended to facilitate the implementation of the World Medical Association’s 1964 Declaration of Helsinki, which became widely respected as a source of guidance for the ethical conduct of medical research. The CIOMS guidelines “are designed to be of use to countries in defining national policies on the ethics of biomedical research involving human subjects, applying ethical standards in local circumstances, and establishing or improving ethical review mechanisms.”12 Although these guidelines are thus intended to influence national regulation and legislation, they are not themselves legally or otherwise authoritative, but are instead put forward as candidate moral principles for those dealing with medical research to consider. In their 2002 revisions of the guidelines, CIOMS incorporated a resolution of the standard-​of-​care issue that was basically similar to Dr. Jones’s policy. CIOMS does not purport to speak for the moral community. Nonetheless, this resolution did help bring about a de facto convergence of opinion. The issue continues to be a controversial one, the CIOMS guideline not having been taken to be sufficient to address all the worries about the double standards of medical research in developing countries (see Macklin 2004). Still, the guideline does seem to have met with considerable international acceptance, so far as it goes. In due course, we will have to examine closely what sort of general acceptance is required in order to ratify a new moral norm, incorporating it into the set of objective moral norms. Intuitively, though, it is plausible to suppose that this is happening with something like Dr. Jones’s improvised suggestion. Whereas this innovative provision of medical research ethics is arguably on the cusp of becoming objectively established, my examples of more informal processes fall on either side—​one representing a well-​established social achievement and one that may be formed in the future. I will come shortly to my example of a well-​established moral innovation, arguing that the obligation of keeping one’s promises is such a case. Since it is so well established, though, it is actually helpful to complement that example by thinking of a moral innovation that may soon be needed and that will have to arise from social processes

11. I am grateful to Ezekiel J. Emanuel for discussion of this case. 12. http://​www.cioms.ch/​frame_​g uidelines_​nov_​2002.htm.

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unmediated by global facilitating institutions. As such an example, I offer the following case: Grandparental obligations: Average human life expectancy has more than doubled in the past century. It is now well established that the relationship between parent and child is hemmed in by moral obligations that run in both directions. As people live longer, we will face new issues about moral obligations that skip a generation. These will include gross-​filial obligations (obligations to one’s grandparents) and grandparental obligations (obligations to one’s grandchildren). It is now plausible to argue, as Heather Draper (2013) has, that there are no grandparental obligations as such: that any obligations that grandparents owe to their grandchildren are derivative from the obligations to owe to their children, who may need help or want the grandparents to have a relationship with their grandchildren. We may speculate, however, that this absence of differentiated, moral grandparental obligations is partially the result of the fact that, hitherto, most grandparents have tended to be sufficiently frail and sufficiently near the end of their own lives to be relatively unlikely subjects of significant obligation. Reinforcing this contingent reason why differentiated grandparental obligations have not yet broadly arisen is that, unlike parents, grandparents have hitherto not been likely to be sandwiched between obligations to their children or grandchildren, on the one hand, and any elder generation, on the other. Now, as four-​generation families become more common, it will become more important to make explicit the moral tensions that these bidirectional pulls can create. In this case, we have no real idea what might emerge by way of grandparental obligations from global experimentation and informal dialogue. Given the long-​term demographic trends in the background, we have some reason to expect some, perhaps quite abstract understanding of grandparental obligations to emerge. These might simply indicate that the obligations that grandparents have to their grandchildren, as such (so, nonderivatively) are not nil, and call for them to be minimally supportive, absent certain defeating factors. Global convergence on even such a schematic formulation could arise only from a long-​percolating informal process. It is hard to imagine formal institutions playing much of a role. If such a principle emerged and became appropriately accepted, that would be a case of informal moral innovation. We can think of the morality of medical research and the morality of familial relations as different subdomains of morality, each, as I  have suggested, with moral norms specific to them. Although many, if not all, of these domain-​specific

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13

moral norms are related in some way to more general norms of morality, such as those enjoining beneficence and respect for persons, they are too specific to be entailed by those more abstract norms, even in conjunction with the general facts about the nature of medical research and family relationships. Now, imagine thinking about morality as a whole from a perspective akin to that of a design engineer working on a new Mars rover or of an evolutionary biologist admiring the efficiency of a grasshopper’s exoskeleton. From such a design perspective, it is not inappropriate to think of morality, so conceived, as having parts that, like those of the rover or the grasshopper, can move with some independence from one another. Just as a Mars rover might extend an exploratory leading probe, or the grasshopper its antennae, to assess the lay of the land before committing its whole body, so, too, will morality’s shifts take place first in the specialized domains, before it is settled whether these shifts are to be incorporated into morality as such via new or altered general principles. In an engineer’s or biologist’s usage, a body is said to be “articulated” if it has parts that move with some partial independence from each other, allowing greater overall flexibility in movement. Whereas the metaphor of voice animates the problem of articulating the moral community, this metaphor of flexible movement allowed by the partial independence of internal parts explains how “articulating the moral community” can also name the solution to that problem.

I.3 The Possibility of Indeterminacy-​Reducing Moral Progress The “movement” that concerns us here is a kind of change in morality. This book is about how we can, when revising the right and the good in light of each other, introduce new specifications of moral principles—​formulations that add specificity and become incorporated into objective morality.13 By this, I mean that we can add new principles to morality, understanding it in the normative way explained previously, as including a set of principles that validly bind on all persons. Again, we must distinguish between morality, so understood, and the ultimate truth-​conditions or truth-​makers of morality, whatever these may be.14 I will be concentrating on this specificatory pathway as an important potential source of moral progress. I will come in a moment to why I describe it only as a potential source of moral progress; but first, let me explain why it is just one source, among others, of potential moral progress. To begin with, sticking to how

13. On specification, see Richardson (1990b). 14. I am grateful to Gabriel Broughton for criticisms that helped me see the importance of making this distinction.

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the norms validly binding on all persons might get reformulated, it seems possible that other kinds of reinterpretation of moral principles might yield objective moral progress.15 Making norms more abstract would be one example. Yet this possibility suggests a deeper divide between two types of moral progress: authoritative moral progress and epistemic moral progress. Consider, for example, the painfully slow and much-​contested stepwise moral progress achieved in moral approaches to politics, in the United States and other places, in moving from “All white male property holders ought to be guaranteed political equality” to “All white males ought to be guaranteed political equality” to “All whites ought to be guaranteed political equality” to “All ought to be guaranteed political equality.” There are two importantly different ways that this progress might be understood. From our current point of view, we might think, Whiggishly, that the final step in this sequence represents—​if not the ultimately refined truth about politics (issues remain regarding children, immigrants, the severely cognitively disabled, etc.)—​at least a principle that is closer to what always had been the truth than any of the prior items in the sequence. If this is how we understand things, we will be apt to apply this conclusion retrospectively, taking people of earlier ages to have been morally mistaken in their adherence to the earlier, excessively qualified principles. (My use of “we” here is, I  admit, deliberatively provocative. This usage perhaps best fits that of the philosophers among my readers. Despite philosophers being a group with famously heterogeneous views, on this question they nonetheless tend to diverge from historians, who tend to be sufficiently impressed by the epistemic inaccessibility of one period’s insights to another’s that they are drawn toward a historicist relativism that indexes moral truth to different time-​periods.) On this philosophical reading of this progress in political morality, the progress is epistemic: We have come better to understand what morality always required of us. Seeing moral progress as an improvement in knowledge, in this way, requires seeing it as occurring against the background of moral truths that are not sensitive to history—​at least not at the level of granularity being considered. Because our moral errors have been, and no doubt continue to be, pervasive and pernicious, correction of mistaken moral commitments is a practically vital and important task. There is much of philosophical interest to be said about how epistemic moral progress can be achieved, and about what its main obstacles are (see, e.g., Moody-​Adams 1999; Anderson 2014). Historically, one of the most important recurring moves in making epistemic moral progress has surely been the

15.  For a set of distinctions among modes of interpreting moral principles, see Richardson (2000).

  I.3  Indeterminacy Reduction  • 

15

opposite of specification—​namely, to strip principles of qualifications that, upon reflection, are found to be irrelevant. Another conceptual possibility, however, would be to cast this same kind of example of moral progress as constituting a case in which a new, more abstract moral norm comes to be validly binding on everyone. Perhaps a moral norm cannot be validly binding unless it is ratified by everyone. With such a reading of this kind of history, philosophical efforts to press for adequate justification or grounding of purported moral principles could play a valuable facilitative role in bringing about that abstract principles authoritatively became morally binding.16 This possibility that a new moral norm might be established via such a process of abstraction goes beyond anything defended in this book. Although the authoritative moral change that I defend does involve a ratificatory moment, it also crucially involves an initial input stage. This input is authorized in relation to certain moral norms that are valid when the process begins. As a defensive maneuver, I have simply assumed that, at the epistemically inaccessible level of the ultimate moral truth-​makers, there are second-​order norms that authorize the introduction of new moral norms under certain conditions; but in order to make my affirmative case, I need to show how, at the level of accessible and intelligible moral principles that are validly binding on all persons, certain of these principles give rise to authorized occasions in which certain individuals exercise moral discretion. It will be the task of ­chapter 3 to make that argument. The set of moral norms that was validly binding on all persons before the process of authoritatively adding to it began is what I  mean by “morality’s objective core.” The type of authoritative moral progress whose possibility this book defends involves adding objective content to the set of binding moral principles by filling in some of its gaps. This occurs, I claim, via historically contingent social processes of a certain kind. When such a process succeeds, it thus supplements morality’s objective core. This will mean that some significant questions about how people ought to act go from being objectively unsettled to being objectively settled. Although, as I am about to explain, adding specificity to norms is not the same as reducing indeterminacy in action guidance, specifying does more directly lend itself to reducing indeterminacy than does abstracting. Before I come back to the question of whether filling in the gaps in morality in this way always counts as progress, I should say something about the gaps in

16. Both Raz (1999, 179) and Cohen (2008, chap. 6), discussed in §9.2, characterize the press toward more abstract principles as a search for grounding; but whereas Cohen argues that this press ultimately arrives at moral principles that are eternal verities, Raz contemplates that the newly arrived at principle could be a new one, representing a nondisruptive sort of moral change.

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question. I  mean not to get deeply caught up in the metaphysics of moral indeterminacy. As I  have indicated, my own views on the metaphysical basis of moral truth are unsettled. I will, then, characterize the relevant gaps as they arise from the set of objectively binding moral principles, not at the level of ultimate truth-​makers. There are at least two reasons that the set of all objective moral principles might not settle all important questions about what we morally ought to do. First, they may simply fail to apply to some important moral questions—​questions that are clearly moral because they are the same in kind as ones to which they do apply, but which do not fall within the scope of any binding principle. Because many moral principles are quite broad and abstract, it is not easy to imagine a situation to which no moral principle applies; but suppose, for instance, a question arose about whether it was wrong to be impolite to a robot. A principle of respect for persons provides a basis for thinking about this question; yet it does not straightforwardly apply. Such cases, a staple of science fiction, do not simply reflect vagueness in the concept of a person. More deeply, they reveal that this concept is uncomfortably vague: it is unsettled in a way that we morally care about and that we would pro tanto prefer it not to be unsettled. Because we morally care about it, we would not simply want to defer to linguists’ information about the semantics of “person” (generally, or in this or that social group) to settle the matter for us (see Schoenfield 2016). If there were really no objective moral principle capable of settling whether we ought not to be impolite to robots, this discomfort might give us reason to settle the question as a matter of convention. To be sure, if we were able to set aside the kind of humility about our capacity to imagine future surprises that these sorts of science fiction cases can serve to motivate, and if we adhere to a fundamental moral axiom to the effect that “That which is not morally forbidden is morally permitted,” then we would never find ourselves in a situation in which no moral principle applied. As we will see in §9.2, however, there is serious reason to hold onto humility of this kind. A second and more important reason why the set of objective moral principles might not settle all questions about what we morally ought to do is that practical principles, including moral principles, are apt to conflict contingently. Debates about the existence of moral dilemmas have made clear that moral principles that are not stated in terms of what an agent ought, all things considered, to do, but rather in terms of a specifically moral “ought,” are subject to contingent practical conflicts, which leave the agent unable to satisfy both of the conflicting principles. It may be that an agent morally ought not to betray her family and morally ought not to endanger her companions, and that she cannot escape violating one or the other of these requirements. Some have thought that moral dilemmas are impossible because they entail contradictions; but in fact, nothing logically

  I.3  Indeterminacy Reduction  • 

17

precludes them, for we are not logically required to assume that the specifically moral “ought” agglomerates: that is, we need not assume that from the facts that one morally ought to do A and morally ought to do B, it follows that one morally ought to do (A & B) (see, e.g., Marcus 1980, Foot 1983). In this regard, the specifically moral “ought” differs from the all-​things-​considered “ought.” The upshot, then, is that in situations in which one morally ought to do A and morally ought to do B, but cannot do both, one may be in a situation in which the set of validly binding moral norms implies that, whatever one does, one acts in a morally impermissible way.17 Moral philosophers have differed about the substantive limits on this possibility. Thomas Aquinas, for instance, argued that such moral “perplexities” could arise only as a result of some prior moral fault of the agent’s, such as an error in conscience.18 Some contingent conflicts among moral principles can be resolved without there being any push toward generating a new moral norm. For instance, in some cases, it will simply be obvious that one of them morally overrides the other. This is what W. D. Ross (1988) plausibly says happens when your duty to meet a friend for lunch, as promised, comes up against your duty to save someone from drowning. What “overridingness” means, operationally, is this: Once overridden in a context, a principle no longer makes impermissible the option that, had it not been overridden, it would have forbidden. Sometimes, however—​as will be true, for instance, of some cases of conflicts between betrayal and endangerment—​it is plausible to conclude that neither of the conflicting requirements or principles morally overrides the other.19 That leaves the agents without a clear answer as to what they morally ought to do. To be sure, this does not imply that there is not an all-​things-​considered answer to what the agent ought to do. As we have seen, since the all-​things-​ considered “ought” agglomerates, there will be logical pressure to accept that there is always an all-​things-​considered answer that indicates either which of any two alternatives one ought to take, or that it is indifferent which is taken.20 One way to back up the suggestion that there is an all-​things-​considered “ought” that behaves this way is to link it to our practices of advice-​giving.

17. I say “may be” here because one important condition of being in a true moral dilemma remains to be stated, involving overridingness. 18. This is so at least as interpreted by Donagan (1979, 144–​145). 19. Here, I follow the analysis of moral dilemmas defended in Sinnott-​Armstrong (1988). 20. One way to resist this pressure not relevant to my discussion is the fourth possibility that Ruth Chang (2002) has defended—​namely, parity.

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“OK, so I am in a moral dilemma, but which option should I take?” seems a fair question. Relatedly, one might invoke an inclusive and allegedly neutral comparative category, such as all-​things-​considered goodness, and ask which option would be, all things considered, better to take. Neither of these, however, is a moral question, at least on the understanding of moral dilemmas that I have endorsed. On that understanding, and given the existing set of moral norms, since neither of the conflicting moral requirements overrides the other, it makes sense to say both that no matter which option the agent takes, she will be acting in a morally impermissible way; and that morality does not settle which option she should take. In the case of both reasons for moral indeterminacy that I have invoked, then, the indeterminacy in question is not, in the first instance, a matter of vagueness or of sentences lacking a truth-​value. Rather, in the first instance, it is a matter of the set of moral principles not giving agents clear guidance about what they ought, morally, to do. If no moral principles apply to a practical question—​again, a possibility presuming that there is no catch-​all moral axiom that would declare permissible any action not forbidden by other principles—​then it is trivially true that this set of principles offers no clear guidance about what agents faced with that question ought to do. If, by contrast, two of the moral principles that apply to a practical question land the agent in a moral dilemma of the type described, then, while it is clear that whatever the agent does in the situation will be morally impermissible, the agent remains in a practical perplexity. Morality—​understanding it, as I have been, in terms of the set of objective principles binding on all persons—​does not advise which of the conflicting options to take. Morality’s advice is thus indeterminate. My philosophical readers may object that this is too thin a characterization of morality—​one that fails to consider a whole layer of moral reasons that are prior to and independent of principles. And surely these reasons, they may say, will indicate which of two contingently conflicting principles is more overriding than the other. In response, I submit that whether one principle overrides another is not, in itself, a comparative matter. The issue is not which of two principles is more overriding than the other. Rather, there are two questions: whether principle A overrides principle B, and whether principle B overrides principle A. Again, in the case of moral dilemmas, the answer to both these questions is “no.” Some moral theorists will hold that the answers to these questions ultimately rests on a comparative matter, such as which option is “morally better” or “more of a duty” (or more “stringent”) than the other (Ross 1988, 18, 41). Ruth Chang (1998, 1572) defines “comparativism” as the claim that “a comparative fact about the alternatives determines which alternative one is justified in choosing.” If we see “morally permitted” as an appropriate substitution for “justified” in this

  I.3  Indeterminacy Reduction  • 

19

definition and overlook the claim’s apparent implication that exactly one alternative will be justified in any situation of choice, then the comparativist’s claim applies to choices involving conflicting moral principles. This claim, however, is contentious. It is, in effect, a substantive claim in normative ethics. If put in terms of betterness, it expresses a generically consequentialist or teleological view.21 If put in terms of stringency, it more likely expresses a deontological view. In defending CEP in the following chapter, I will be resisting both of these views in normative ethics. I will be arguing that to proceed systematically on the basis of an ethical theory, we do not need either to rely upon, or to aim for, an articulated comparativist basis (in terms of moral betterness, stringency, weight, or whathaveyou) for settling issues about overridingness. Instead, we can put our theoretical energy into improving the overall practical coherence of the set of moral norms, in part by introducing new ones that may help us avoid or deal with moral dilemmas. When a moral dilemma arises, that is a sign of a problem; but we must remember Ruth Barcan Marcus’s lesson about this (Marcus 1980). The problem may be with the moral norms, as so far conceived or objectively established, which generate the dilemma; but the problem may lie instead with contingent features of the world in which we live, which may need to be reformed. We should often work harder to avert contingent conflicts between loyalty to one’s family and the endangerment of one’s companions, between assuring one’s children a modicum of safety and keeping them by one’s side in their native country, and between political self-​determination of groups and the rights of minorities, and in many other ways, strive to stem the violence and injustice that thrust many into moral dilemmas. At the same time, we should remain open to the possibility that the moral perplexity of those facing moral dilemmas can be alleviated via better articulated moral principles. Given the fallibility of our moral understandings and the moral errors to which we are prone, it will generally not be possible for us to know whether any new articulation of a moral principle is simply a correction of a prior error or the addition of a new, objective moral norm. In giving my examples of moral innovation, I have concentrated on novel issues, on which, plausibly, the moral community initially had no settled view. Moreover, it is difficult to locate without controversy any case to which no moral principles apply, or any case of a moral dilemma. Regarding the latter, although we are often aware of incommensurable principles conflicting, it is difficult to find sure grounds for establishing that in

21. In Broome (1991, 6), a “teleological theory” is defined as “one in which the rightness of acts is determined by their goodness.”

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a given case of conflict, neither principle overrides the other.22 In practice, of course, it will not hugely matter whether a given case of moral progress is to be classed as an improvement in our moral understanding (of principles that already obtained) or an authoritative addition to the set of binding moral norms. What we must hope is that any new understanding does not introduce a new error, and that any authoritative addition does not make morality worse. The possibility that authoritatively adding a new moral norm to morality will make it worse implies that such additions are merely potential cases of moral progress. Other things equal, perhaps, more complete guidance from morality is better, in some relevant sense. Always, however, any gain in terms of guidance must be assessed in relation to any normative limitation on freedom that newly provided specificity may entail. To be sure, since the new guidance arises where there had been indeterminacy, and since many such indeterminacies will arise from unresolved moral conflicts, the seriousness of this concern about freedom will depend on how unresolved moral conflicts are to be treated and understood. If these conflicts are to be taken as putting agents in double binds condemning them to act wrongly, it may well turn out that adding a new moral norm that overcomes the indeterminacy that had existed relative to the preexisting set of valid moral norms will enhance moral freedom for cases like the one occasioning the innovation. Still, because this newly gained moral specificity can arise only via the formation of new social conventions or practices, in my view, there will be some social sanctions attached to the new norm. These may generate some future limitations on freedom in other kinds of cases.23 Now, there are serious questions about how to define the appropriate point of view from which to assess whether a given moral change that comes about via authoritatively filling in a gap in morality counts as an overall improvement. I will not offer an account of how to evaluate such moral progress. I will in due course argue that filling in the gaps in morality can generally be trusted to offer morally significant benefits that may often more than make up for a new norm’s impingement on freedom; however, I will not be able to offer this account until c­ hapter 3, when I will be in a position to explain how the process of introducing new moral norms responds in various ways to morally significant concerns. In any case, the view proposed in this book cannot be read as offering a practical panacea. Its account of articulating the moral community is, rather, an account with philosophical purpose, aiming to shift how we conceptually orient ourselves

22. Thanks to Gabriel Broughton for raising the question that I am here attempting to answer. 23. I am grateful to Gabriel Broughton for bringing home to me the importance of this downside of specifying moral norms.

  I.4  Basic Conditions  • 

21

to ethics. One side of this reorientation, as I have already mentioned, aims to provide convincing reasons to think that it is appropriate for moral theory to begin in medias res, with the considered moral judgments and the moral practices that we have. Since doing so is in any case hard to avoid, this is a task of reconciliation. The other side of this reorientation is more reformist. I aim also to convince my readers that—​working within inherited materials, to be sure—​morality is something that we need to work out together. To understand how this is possible, we need to understand, conceptually, how it is that we, working together as members of the moral community, might introduce new, objective moral norms.

I.4 Basic Conditions on How New Moral Norms Can Be Socially Introduced This book defends a three-​stage conception of how the moral community can introduce new, objective moral norms that reduce morality’s indeterminacy.24 We have seen that in morality, this kind of authority cannot arise in the centralized—​that is, constitutionally structured—​way that it does within democratic discourse and decision-​making. Factoring the moral community’s decision-​making into three stages is a response to this limitation, which is imposed morally as well as practically. The idea is that the first stage authoritatively specifies a norm, but in a way that reaches only particular people who are working out together how best to respond to a moral issue. The second and third stages, involving de facto convergence and then reflective acceptance, convert this authoritative input of limited reach into a general moral norm, accepted by the moral community. The decentered social process whereby this can happen needs to be appropriately shaped by objective morality, such as has been already established. Again, objective morality, as it has already been established, will include both morality’s invariant core and some objective accretions that have already been added in the contingent course of history. A plausible example of the latter is the moral requirement of keeping promises. Because of our dependence on one another, our many vulnerabilities, and our hopes for cooperation, it is plausible to suppose that morality’s objective core includes some quite abstract principle of assurance, requiring one to take care not to disappoint people when one has provided assurances about what one will do.

24. I am grateful to Philip Pettit for help in characterizing these stages in a clear and attractive way. He should not be held responsible, of course, for the unclarities I have heaped on top of this simple outline.

2 2   •  I n t r o d u c t i o n

The practice of promise-​making—​now, if only as an indirect result of the global spread of contract law, universally spread—​is, however, much more specific than this. For this reason, it is difficult to avoid accounting for the morality of promises without invoking the contingent shape of our practices of promise-​ making. As a reminder of features of these practices that are not built in by the abstract principle of assurance that we are supposing to lie in the objective core, consider the bundle of six features singled out in T. M. Scanlon’s principle of fidelity (“Principle F”), a principle about the morality of assurance that itself lies at some distance from the specificity of our practices of promising: that “A voluntarily and intentionally leads B to expect that A will do X . . .; (2) A knows that B wants to be assured of this; (3) A acts with the aim of providing this assurance, and has good reason to believe that he or she has done so; (4) B knows that A has the beliefs and intentions just described; (5) A intends for B to know this, and knows that B does know it; and (6) B knows that A has this knowledge and intent.” When these conditions are met, the principle holds, “A must do X unless B consents that it not be done” (Scanlon 1998, 304). Our practice of promising provides a handy way of seeing to it that these features are instantiated, but it remains, Scanlon notes, “a special case” (306). Just as this principle of fidelity can help explain the moral significance of practices other than our promise-​making practices, so too could alternative practices, developed through a different course of social history, have fit better with a different principle of fidelity. To be sure, if Scanlon’s principle of fidelity itself counts as an objective element of morality, that further constrains things; but my supposition was that morality’s invariant, objective core includes only a very abstract principle of assurance. The point of invoking Scanlon’s principle was to use it to mark a midpoint on the conceptual road between such a highly abstract principle and our actual practices of promising, and thereby to help us imagine how, along the contingent, historical path to these practices, things might have taken another turn, filling out morality in another way. The decentered process of moral innovation defended in this book presupposes, as part of its background, that a set of objective moral norms has been taken up in social practice. The book defends no specific view of which these norms are, but rather aims to select relatively noncontroversial examples. The reason for this presupposition is that the account looks to such initial moral norms as essential to empowering any individuals to initiate the formation of a new moral norm. Specifically, to support the account developed here, morality must already be differentiated enough to generate some directed duties, to which rights correlate. This is not hard to imagine. Perhaps it was always so. Perhaps morality always included valid principles stating suitably qualified or nonabsolute versions of the

  I.4  Basic Conditions  • 

23

core duties not to kill, assault, or torture, where these are cast as duties owed by every person to every other. In the fashion of the natural rights tradition, their presence in morality’s objective core—​if, indeed, not also in its timeless, invariant portion—​could be explained by fundamental features of embodied and vulnerable moral persons. Of course, to make any such explanation noncontroversially convincing is a difficult task.25 If such directed elements were not always part of morality’s objective core, the explanation of how they became authoritatively included in it could not be given by this book’s account, which, as I have said, starts from directed duties. I have already indicated, though, that other ways of authoritatively adding content to morality are at least conceivable. In this work, I simply assume that morality’s objective core includes some directed duties, which could long ago have authorized history’s first objective moral innovations. From such a starting point, the possibilities for further moral innovation can ramify as additional directed duties get added to morality. These can include various provisions that give a specific “shape” to the basic provisions found in the core. This general picture, in which some basic, probably quite abstractly stated directed duties and their correlative rights lie in morality’s objective core—​perhaps for reasons explained by the inviolability of moral persons—​and historical processes of moral innovation add specificity to that core, is more plausible than an account that would rest simply on the idea of inviolability or any such feature of persons’ moral status. As Leif Wenar (2001, §6.1) comments, [T]‌he simplicity of the [pure] status approach to rights can also appear to be a liability. On close examination, the fundamental rights that most people believe in are intricately “shaped.” For example, consider the widely-​accepted right to free expression. This right includes the right to make damning personal attacks on others. Yet the right is much more permissive about attacking public figures than it is about assailing private citizens. How could a status approach explain this distinction between public figures and private citizens? In the account to be defended here, we do not expect any moral rights or duties to be explicable solely on the basis of fundamental ideas about the moral status of persons, such as might serve to delineate morality’s objective core. The very

25. As an example of this difficulty, consider that one plausible way of following up on the notion of embodied vulnerability appealed to in the text is to develop the idea of self-​ownership so as to explain the duties mentioned. For a recent account of problems faced by such an effort, see, e.g., Sobel (2012).

2 4   •  I n t r o d u c t i o n

distinction between a “public figure” and a “private citizen” is a product of our contingent history. Though the idea now has quite widespread relevance around the world, human societies might never have evolved in a way that would have supported it. Human societies could, for instance, all have become small city-​ states organized in a way that radicalized Athenian democracy. In these, all persons would have taken turns, perhaps on a random basis, filling places on juries and collective assemblies. If history had taken that turn, there would have been little basis for a significant moral distinction between public figures and private citizens. Given that history has not taken this path, there is, conversely, reason for making such a distinction. An advantage of the kind of view that this book aims to develop is that it can explain how such contingent, historical developments can build on objective moral beginnings—​including, initially, morality’s objective core—​so as to generate rights and duties with the complex shape that they seem actually to have. This book’s central hypothesis is that, in morality, authorized innovative moves arise, as it were, on the periphery, in the ambit of established moral norms of a certain type—​ones that mark out bilateral moral relationships in which person A owes person B a special moral duty, such that B has a correlative moral right against A. The categorical sense in which moral innovations in those confines are peripheral is that they are merely particular in their occasion and effect. Thus, as I shall argue in c­ hapter 3, the specifications of the special duty/​right that these parties have the discretion to work out will immediately affect only what these two parties ought morally to do or have a right to. They accordingly lack the universality that, as we have seen, is essential to moral norms. Because the process of moral innovation cannot gain its authority from a centralized constitutional structure that shapes how the billions of moral persons can together reach any decision, it must instead depend upon some authorization at this initial stage of peripheral input.26 That, at any rate, is the hypothesis. Since this authorization stems from objective morality, as hitherto established, it will not extend to overturning elements of that objective morality—​at least not unless that objective morality is deeply riven with internal, contingent conflicts—​and is instead limited to supplementing objective morality. To capture this limitation, it is convenient to think of this authorization as limiting the parties to moves that specify the initially given duty or right. These specifying moves, whose effect is confined

26. I am much indebted at this point to Daniel Threet’s resilient criticism.

  I.4  Basic Conditions  • 

25

to the rights and duties of the two linked, particular persons, are morality’s tentative probes, its exploratory feelers. More prosaically, I refer to this as the “input stage.” The input stage authoritatively puts a new candidate moral norm on the table; but it cannot become a moral norm, proper, until and unless it gains the endorsement of the moral community. For indeterminacy-​reducing moral change to occur, then, the authorized input described, whose effect is limited to modification of the parties’ rights and duties, needs to be supplemented by two further developments. One is a social process of selection, possibly among several competing candidate moral norms, and convergence upon a shared social practice embodying the selected norm. This process must be largely driven by how particular people exercise their discretion in carrying out the special moral responsibilities assigned to them. Because there can exist, for morality as such, no centralized, authoritative decision-​making institutions, this process of coming to convergence cannot be seen as having authoritative import. Rather, it simply provides the de facto basis to which the moral community can react by either endorsing this new moral norm or not. The third and final stage, of a new moral norm’s being adopted, is such an endorsement. Because this final task concerns a definite candidate for moral innovation (namely, a newly specified norm on which global convergence has been reached), it is not necessary for the moral community to address the issue as a full-​fledged decision-​making body. What the moral community is called upon to do, in this final step, is to simply ratify this candidate moral innovation—​or refuse to do so.27 De facto convergence on a new candidate moral norm could come about in any of a wide variety of ways. Promise-​keeping practices may have arisen within certain cultures as a way of dealing with providing assurance with regard to future actions; but although only lately, as I have suggested, has this informal convergence in various localities led to a broader, global convergence, apparently with the help of global legal institutions, which have helped spread ideas about promissory obligations via the idea of a contract. In this role, these legal institutions play a facilitative role in bringing about global convergence, not an authoritative role. In spreading the idea of promissory obligations, these legal institutions do exert influence, but are not exercising even legal authority. In this respect, the role 27. I say “simply” to ratify because ratification is a simpler task than deciding which of many potential candidate norms for dealing with a given issue is the one that should be adopted as a commonly agreed basis for action. As Anne Jeffrey has reminded me, many difficult aspects of the moral community’s ratification of new moral norms remain, including epistemic ones about determining whether a convergent practice is in place and hermeneutic ones about whether that practice is rightly understood as exhibiting common adherence to a single norm.

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of institutions is similar to that played in the example of Dr. Jones by CIOMS, which, unlike legal institutions, does not even make a claim to legal authority. In the example of grandparental obligations, any de facto convergence that emerged would surely have to come about via a wholly informal route in which institutions have played little, if any, role. The stage of ratification can be viewed as involving the moral community’s self-​conscious acceptance of a given moral innovation. Although the moral community embraces billions of persons, it is not a sharply bounded or formal collective. Its self-​conscious ratification of new elements of morality will thus need to be understood not simply collectively, but also in terms of conditions that pertain both to individuals’ reflective acceptance of the candidate innovation and their realization of others’ having done so. In setting out necessary conditions for this process of introducing new moral norms to work, it has not always been easy to determine what sort of condition they are. In the case of familiar moral powers, such as that of waiving a right, we have a sharp enough understanding of the power to be able to distinguish clearly between felicity conditions, which bear on whether the power has been exercised, and permissibility conditions, which bear on whether it is right to have exercised that power. Since we are talking about how the content of objective morality might get added to, a morally impermissible move is surely as ineffective as an infelicitous one. For the most part, in characterizing the input stage, I will concentrate on felicity conditions, whereas for the latter two stages, I will talk more frequently about legitimacy conditions. In addition to being appropriately authorized, any social process that might have a chance of establishing new elements of objective morality must be in some appropriate way legitimate. Specifying illegitimate ways of putting in place novel variants of moral practices—​say, by force or fraud, or in a way that arrogantly ignores the fundamental moral equality of persons—​of course depends upon having an initial sense of morality’s objective core. And I do think that we can safely think of suitably abstract and conditioned principles prohibiting force, fraud, and arrogance as belonging in morality’s objective core, along with an abstract principle of assurance. At the different stages of the process of moral innovation, different requirements of legitimacy will bear. An important legitimacy condition at the first, input stage is that the parties must not see one another as simply being free to specify the right or duty as they see fit. While they may or may not have an inkling that they might be exercising moral authority, they must not be thinking that they are not responsible for trying to take account, as best they can, of the moral considerations that bear on how best to specify the relevant right or duty.

  I.5 Preview of the Argument  • 

27

Just as certain legitimacy conditions attach to the input stage, other legitimacy conditions, appropriate to each, apply to the stages of selection and convergence and of ratification. The process of selection and convergence, above all, must not be coercive or manipulative. The process of ratification must involve the open exchange of reasons, in which no one set of voices has seriously unjust influence. At each stage, these legitimacy conditions are important because illegitimacy in the process of generating a purported moral innovation can defeat its claim to becoming an objectively valid element of morality. As to the ratification stage, the principal conditions concern what constitutes the moral community’s endorsement of a candidate moral norm on which social practice has converged. In the view defended here, the moral community’s self-​conscious acceptance of a candidate moral norm—​in the just-​mentioned individualistic-​cum-​collective mode—​must include some level of awareness that this candidate, convergent norm was generated by individuals attempting conscientiously to fulfill their special moral responsibilities (the basis of their authorization at the input stage), as well as some critical reflection on the process whereby convergence has come about.

I.5 Preview of the Argument This book’s principal thesis, then, is that new, objective norms of morality can be added to those established hitherto via the three-​stage process just abstractly described. This is a process in which: •

Individuals who have special moral responsibilities authoritatively generate, in a particular form (as opposed to a universally applicable form), a new specification of objective moral norms bearing on a certain issue. • Legitimate social processes bring about de facto selection among rival specifications and convergence on such a newly specified global norm with regard to that issue. • The moral community gives its imprimatur to this convergent norm in a way that involves individual reflective acceptance thereof, awareness of others’ acceptance, and awareness of this norm’s having arisen from individuals having attempted conscientiously to exercise their relevant special moral responsibilities. This summary statement of the conditions for indeterminacy-​reducing moral progress remains somewhat vague. Further detail remains to be supplied in the body of this book. The ratification conditions, in particular, are more complex than can conveniently be set out in this Introduction.

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Two preliminary chapters will further motivate and orient this effort to account for the possibility of introducing new moral norms. Chapter 1 will give the promised exposition of CEP. Although the current account of moral authority serves to defend the coherence of CEP, the latter approach helps explain how objective morality leaves room for indeterminacy-​reducing moral authority and helps motivate looking for an account of such authority. It does the former by suggesting how we might productively pursue moral theory from within our existing moral practices, as well as by indicating how there might be room to work back and forth between established conceptions of the good and established conceptions of right action. Building on the account that this Introduction has given of moral indeterminacy, this opening chapter helps motivate the book’s central effort by arguing that part of moral theory’s task is to help us determine which actions are permissible and which are required. Because the moral authority defended here falls to the moral community, it is important to be clear up front about the idea of the moral community. Developing that idea will be the task of c­ hapter 2, which also further explains what it means for the moral community to be articulated. In addition, the chapter will develop a challenge posed by Michael Thompson (2004b):  How can we conceive of a moral community of persons in which it is the case both that they are knit to one another via a web of directed duties and the correlative rights, and that the resulting community is open ended? Part II develops and lays out the three-​stage account of moral authority. Chapter 3 undertakes to argue that a person who owes a moral duty to another has some discretionary power to specify the precise contours of this duty—​ paradigmatically by working in conjunction with the person to whom he or she owes the duty. This discretion is limited by the previously established objective content of morality. In order to get this idea of authoritative input on the table, it is necessary to take a detailed look at the idea of a directed duty and to ask what useful role in plays, if any, in shaping morality or our moral thinking. Because the limited discretionary power to specify the duty emerges as the principal answer to this question, the chapter argues that the idea of directed duties, like the correlative idea of rights, is better understood on that basis than on the basis of the traditional “theories of rights”—​the Will Theory or the Interest Theory—​or of several newer theories. This last claim is not necessary for the book’s argument going forward, but may be of some independent interest. Chapter 4 then sets out how the articulation (in the engineer’s or evolutionary biologist’s sense) of the moral community that arises from special responsibilities provides a basis for answering Thompson’s question about what can unify all persons into one moral community. In so doing, it will explain the importance of

  I.5 Preview of the Argument  • 

29

recognizing that, as already mentioned, the moral community is open-​ended, in the sense that it remains potentially sensitive to the claims of persons as yet not encountered. Chapter 5 consolidates the three-​stage account in a preliminary way, laying it out more fully than this Introduction has been able to and giving a detailed characterization of the selection and convergence stage and addressing objections to the idea of authoritatively introducing new moral norms. Because the ratification stage crucially involves members of the moral community reasoning with one another, it is necessary, before attempting to give a final characterization of that stage, to examine the idea of joint moral reasoning, both in general and with an eye to the various forms of it that are involved in the three stages of indeterminacy-​ reducing moral progress. That is the job of c­ hapter 6. With that account in hand, it will then be possible to set out and defend, in ­chapter 7, a final account of the account’s ratification conditions. Part III is devoted to addressing a trio of important objections to the book’s account of moral authority. The first objection, addressed in c­ hapter 8, is that the ultimate commensurability of moral considerations blocks the account’s defense of moral indeterminacy and its grounds for hope that, in dealing with it, people can reasonably work out what to do. The chapter counters the presuppositions about practical reasons that generate such doubts about indeterminacy and, by reconstructing the traditional idea of a final end, sought for its own sake, sketches an account of the psychology of deliberation, intentional action, choice, and commitment that explains how we can engage in the hypothesized kind of stepwise, collective working out of what morality requires of us. As those familiar with the history of moral philosophy know, the view taken here has opponents who hold that the set of objective moral principles is exhausted by morality’s invariant core, because all moral principles, or all nonderivative ones, are timelessly true and knowable a priori. Chapter 9 answers two such opponents, the seventeenth-​century Cambridge Platonist Ralph Cudworth and the recently deceased Oxford philosopher G. A. Cohen. Each of these philosophers puts forward a view that, while ostensibly about the metaphysical nature of moral principles, subtly builds in assumptions about moral justification or explanation. Making explicit these assumptions—​in the case of Cohen, partly by drawing on §8.3’s development of the relation between end and means—​clears away a spurious objection to the possibility that contingent historical processes might add new principles to the set of objective moral norms. Finally, although the idea that the crucial innovating moves are objectively morally authorized may lay to rest some doubts about whether newly specified moral norms can be established as objectively valid, it does not settle all doubts

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that will arise about the objectivity of the upshot. Chapter 10 takes these on by arguing that the sort of mind-​dependence that the process involves is innocuous and by confronting the issues about historicism and relativism that seem to arise, given the possibility that morality’s content varies over time or differs between alternative, morally possible futures. The kind of objectivity that matters, this chapter argues, cannot be threatened by these possibilities.

1

C O N S T R U C T I V E E T H I C A L P R A G M AT I S M

As the Introduction mentioned, this book’s examination of the moral community’s moral authority is motivated in part by an approach to moral theory that offers an attractive alternative to consequentialism, deontology, and virtue theory—​namely, constructive ethical pragmatism. Before we turn in earnest to this moral community and its moral authority, this chapter will contribute to motivating that effort by describing the attractions of constructive ethical pragmatism.

1.1 Characterizing Constructive Ethical Pragmatism I will begin with two remarks about why I cast constructive ethical pragmatism as an approach to moral theory that offers an alternative to consequentialism. First, I  describe constructive ethical pragmatism as “an approach to moral theory,” rather than simply as “a moral theory,” partly because, as we shall see, there is reason not to operate with it as a global theory, but instead to instantiate and work with it more locally, on some specific moral problem or other—​whether large or small in scale. Nonetheless, I should say what I mean by “constructive ethical pragmatism (CEP)” and explain the attractions of such an approach to moral theory. Since I  am casting CEP as an alternative to consequentialism, it should be plain that by “consequentialism,” I do not simply have in mind the noncontroversial view that any action’s permissibility or impermissibility, obligatoriness, or supererogatoriness can be represented as being determined by how the goodness of its consequences or outcome, in a broad sense that includes the doing of the action, ranks in relation to that of the alternatives.1 Call this view anodyne

1. I model this definition of consequentialism on Portmore (2011, 34), taking on board the conceptual link to goodness (of two types) that he asserts (2011, 35).

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consequentialism. Many have argued that any noncrazy moral theory can be consequentialized, in the sense that it can be put into this form (e.g., Dreier 1993, 2011; Portmore 2011, chap.  4; Schroeder 2017). As John Broome noted (1991, 11), any sensible moral view can be turned into an anodyne consequentialist view “in arrears.” The meaning of this remark is well illustrated by Douglas Portmore’s recipe for how to do this (2011, 85–​86): Take whatever considerations that, on the nonconsequentialist theory, determine the deontic statuses of actions and insist that those considerations determine how their outcomes rank. In this way, the consequentialist can produce a ranking of outcomes that when combined with her criterion of rightness yields, in every possible world, the same set of deontic verdicts that the nonconsequentialist theory yields, such that, for any deontic predicate (e.g., ‘optional’, ‘obligatory’, ‘impermissible’, etc.), the resulting consequentialist counterpart theory and the original nonconsequentialist theory will be in perfect agreement as to the set of actions that are in the extension of that predicate. Generating a consequentialist counterpart in this way proceeds “in arrears” because it obviously must start with the rankings generated by the nonconsequentialist theory. It gerrymanders the account of the good so as to yield the same deontic verdicts as the target theory. The possibility of thus representing any sensible moral view does indicate that anodyne consequentialism is difficult to deny. I  have no wish to deny it.2 I will define consequentialism more narrowly. To explain how CEP contrasts with consequentialism and deontology, I  will depend on a working understanding of the contrast between the right and the good. First, I will lay out the relevant definitions and then circle back to defending this contrast, which has been met with much skepticism by the defenders of anodyne consequentializing (e.g., Broome 1991, 14–​15; Dreier 2011, 104–​105). I take my orientation from John Rawls’s remark that “while justice draws the limit, . . . the good shows the point” (2005, 174). An agent’s point in acting is to realize some end—​one that they perceive to be good. An agent’s action is intelligible only if it can be understood as aiming at something that the agent perceives

2. The insistence that every moral consideration can be captured in terms of how outcomes, broadly understood, are ranked might be questioned. It is central to Niccolò Machiavelli’s argument against deontology, discussed later in this chapter, that it lures deontologists into admitting this. One way to fight this is to distinguish between promoting goods and respecting them (see, e.g., Chappell 2004).

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to be good.3 To be good, in the relevant sense, then, is to be choiceworthy. An action may be choiceworthy because doing it is intrinsically good or it conduces  to what is good for the agent or for others. Justice is a paradigmatic case of a concept belonging to the right. Indeed, the German term Recht can be appropriately translated either as “justice” or as “right.” Principles or situational dictates of justice do not as such describe an intelligible point of acting. Instead, they constrain us not to pursue our ends in certain ways—​ways that trample on the rights or claims of others or that criticizably subordinate one end to another, for instance. Moral principles and the situational dictates of virtue play a regulative role, indicating how we ought or ought not to act (see Wedgwood 2009, 508). For instance, when we do other things that we take to have some point, such as pursuing a career or raising our children, we ought not do so unjustly or in a way that gratuitously harms people. In their pure form, such principles do not tell us what we gain by acting in accord with their regulations. Even so, we may care about them for their own sake.4 The good and the right, so understood, seem to be conceptually independent of each other. Perhaps, however, for moral purposes at least, one can be accounted for in terms of the other. The most familiar such account is that of consequentialism, as I  will be understanding it. According to consequentialism proper, as opposed to what I  have called anodyne consequentialism, a full and adequate account of right action can be given in terms of what yields the most goodness, where goodness can be understood and accounted for independently of the constraints of right action (a proviso presumably violated by consequentialized versions of nonconsequentialist views). Deontological views, as I understand them here, deny this.5 Instead, they insist that an adequate account of right action (of which actions are right and why) can be given only in terms that draw on the concept of rightness. For instance, they may hold that right action is action that accords with the nonoverridden principle or situational ought that applies in the situation of action. Deontological views need not deny that goodness can be accounted for in its own terms.6 3. The text’s gloss of goodness that immediately follows makes this claim a relatively uncontroversial statement of a “guise of the good” claim. 4. In ­chapter 8, I develop a moral psychology according to which choiceworthiness and appropriate regulation are the two aspects of the idea of seeking A for the sake of B, including in the case of a final end, where A = B. 5. Again, here is where I depart from Rawls’s broader, disjunctive definition of deontology. See introduction n. 10. 6. Interestingly, there is also a type of consequentialism according to which neither the good nor the right can be accounted for in terms of the other, namely so-​called scalar consequentialism, which refrains from making claims about the right (about what people ought to do).

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Indeed, many deontological views would embrace a principle of beneficence, which presupposes that the idea of what is good for an individual can be given content independently. There is, however, a class of views denying that goodness can be accounted for in its own terms. These are substantive views, according to which what is good is what is virtuous to desire.7 This is the type of virtue theory that is most directly a rival of CEP. In these three types of view, then, the following stances are taken: • Consequentialism accounts for right action on the basis of the good. • Deontology holds that neither the good nor the right can be accounted for on the basis of the other: each stands on its own. • Virtue theory as a standard of goodness accounts for goodness on the basis of the right actions of the virtuous.

Consequentialism and the type of virtue theory we are considering offer reductive accounts going in opposite directions, while deontology simply allows that the right and the good are independent of each other. Because the concepts of consequentialism and deontology, as I have defined them, entail claims about what accounts for what, they are not merely about the deontic status of various actions. This is an important fact, and one to which I will return later in this chapter. My claims about what accounts for what, however, have depended on the Rawlsian distinction between the right and the good—​ and that, as I say, has been questioned. My defense of this distinction will hinge on two facts:  First, in addition to evaluating actions, morality can and should evaluate both social institutions and individuals’ characters or dispositions; and, second, there are important causal and normative relations among actions, characters, and institutions of which morality must take account. Rawls develops his contrast between the right and the good on the basis of how these complexities feed into how we should think about what we might call “the moral point of view.”8 The fact that giving an account of the moral point See Singer (1977) and Norcross (1997). In characterizing consequentialism in this text, I will ignore this possibility. 7.  Aristotle could be taken as holding that the good can be fully characterized only  by reference to what the fully virtuous person (the phronimos) would do. The class of substantive views to which I am referring here should, I think, be contrasted with the more conceptual or metaethical response-​dependence views discussed by Mark Schroeder (2012); but I am indebted to his suggestion that these latter views account for the evaluative on the basis of deontic notions. 8. Of course, since Rawls generally foreswore conceptual analysis, he is not developing a claim about the concept of the moral point of view—​as did, for instance, Hare (1981).

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of view is a central and nontrivial task for moral theory emerges from recent discussions of consequentializing. To see this, we can contrast the approaches of Portmore and James Dreier. Dreier (2011, 97)  stipulates that “a view is consequentialist iff the deontic status it assigns an act . . . is a function [only] of the goodness it assigns the consequences of that act, with the deontically superior acts having the better consequences.” But what is the notion of goodness that is operative here? If it is agent-​ neutral goodness, then it would seemingly be ill suited to consequentializing views that include agent-​centered restrictions or prerogatives; but if it were agent-​centered goodness, it would apparently have difficulty with impartial norms. Dreier (2011, 104) argues that we can transcend the tension between agent-​neutral goodness and agent-​centered goodness by the reference to “the role and evaluative outlook of the moral agent.” He compares moral goodness to goodness from the point of view of a chess player (some moves are good, others are bad) and of a family member (it is good that my son was not in the car that crashed, injuring all its occupants), each of whom has different points of view (102–​103). This sounds like a promising approach; but what is “the role and evaluative outlook of [a]‌moral agent”? While it had been popular to understand it as being focused on impartial reasons or impartial goodness, the recognition of the moral importance of agent-​centered reasons and norms complicates the picture. With this tension in mind, Portmore argues that in the most adequate form of consequentialism, the deontic status of acts, while fully settled by rankings of goodness, is not fully settled by rankings of moral goodness. In going beyond them, he is motivated by the excessive demandingness of a fully impartial consequentialism (2011, 4–​6). He initially introduces this dual accounting in act-​consequentialist form, as follows: S’s performing x is morally permissible if and only if, and because, there is no available act alternative that would produce an outcome that S has both more moral reason and more reason, all things considered, to want to obtain than to want x’s outcome to obtain. (Portmore 2011, 93) Defending an understanding of the moral point of view is a crucial task for any normative moral theory, including a consequentialist one—​and it is hardly a trivial task. In developing such an understanding, it will be natural to distinguish between agent-​neutral and agent-​centered reasons, or between moral reasons and all-​things-​considered reasons that fold in agent-​centered reasons. The distinction between the right and the good on which I  am relying can be explicated by reference to Rawls’s account of the moral point of view,

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in combination with his related conception of the role of moral theory.9 He characterizes the moral point of view as that of free and equal persons seeking agreement on principles to govern their interactions. These persons are characterized further as having two “highest-​order moral powers.” These are “the capacity for a sense of justice, that is, the capacity to understand, to apply, and to act from (and not merely in accordance with) the principles of justice” and “the capacity to form, to revise, and rationally pursue a conception of the good” (Rawls 1999a, 312). This distinction roughly corresponds to Portmore’s distinction between moral reasons and the all-​things-​considered reasons of each agent. Rather than trying to transcend the difference between them or to combine them into a dual ranking, however, Rawls orders them in relation to moral theory’s social tasks, of which there are three. These are to regulate basic social institutions; to guide the formation of individuals’ characters and conceptions of the good, which are deeply and pervasively molded by the basic social institutions in which they grow up; and to guide individuals’ choices. The Rawlsian account of the moral point of view keeps the right (aka justice) separate from the good by giving a kind of priority to the first of these tasks, which is to settle upon “principles [of justice] by which [people’s] claims on one another are to be settled” (Rawls 1999b, 495). (See c­ hapter 3 for a detailed discussion of the relevant notion of a “claim”—​there described as a directed right.) These principles directly regulate the institutions that in turn will mold individuals’ characters and commitments. Indirectly, they regulate individuals’ conceptions of the good—​and thus their rankings of the alternatives available within the institutional setup—​by calling upon individuals to “frame [their] plans in conformity with them” (Rawls 1999b, 495). In relation to this elaboration of the moral point of view and this prioritization of moral tasks, the right refers to the principles (paradigmatically, of justice) that define individuals’ claims against one another, and the good refers to the set of rational life-​plans or rankings formed by individuals, ideally within a set of just institutions. This way of defining the right and the good does not beg the question against utilitarian or, more broadly, consequentialist views, for utilitarianism is one leading account of the principles governing social institutions, and hence individuals’ claims on one another. With the distinction between the concepts of the right and the good thus explicated and defended, I  return to the three broad types of moral theory 9. In describing Rawls’s view in this way, I am abstracting from the limitation of his attention to the problem of the justice of the basic structure of a single nation and describing a more general approach of a kind that was suggested in Rawls (1999a).

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distinguished so far on the basis of these concepts: consequentialism, deontology, and virtue-​based accounts of goodness. As is well known, each of these types of moral theory faces difficulties. In subordinating the right to the good, consequentialism has trouble avoiding endorsing good-​maximizing person-​violations in a way that we find troubling on reflection. Conversely, in characterizing the right independently of the good, deontology has trouble explaining why, if person-​violations are bad, it is not best to minimize them going forward—​even if that means incurring some person-​violations for the sake of fewer similar ones in the future. The virtue-​based account of the good faces trouble of a different kind. The difficulty it faces is gaining a definite enough account of virtue to make the discriminations with regard to the good that we want to make. Too often, such virtue theories fall back on the black box of what the person of practical wisdom would do. In giving these quick reminders of the difficulties faced by each of these major types of ethical theory, I do not mean to dismiss any of them, of course, but merely to hint at why one might have some reason to seek another approach. Schematically, the fourth possibility, which has not been adequately explored in any generality, is that of a nonreductively integrative moral theory. According to such a theory, the two categories are distinct but mutually dependent: no adequate account of either the good or the right can be given without relying on the other. This would mean that any grounding that may be accomplished is not of one by the other or of either by itself, but of a package composed of elements of each. CEP is a species of nonreductively integrative moral theory. Although this broader category’s insistence that the sharp dichotomy between the right and the good can be overcome (at least partially) by means of a coherent integration of the two is consonant with the pragmatists’ general opposition to dualisms, there are nonpragmatist versions of nonreductively integrative moral theory. At least, so I believe. I understand Thomas Aquinas’s moral theory to be such an instance. His so-​ called first principle of natural law (“good is to be done, and evil is to be avoided”) is a principle of right (Aquinas 1948, I–​II, Q. 94, art. 2, 1009). For it to generate concrete content, it obviously depends upon a specification of what is good and what is not; but at least on some persuasive recent reconstructions of Aquinas’s view, while fundamental reasons are given by the basic goods, the crucial moral constraints arise from principles of practical reasoning that fall on the side of the right and that indicate how one should act toward instances of basic goodness (see Murphy 2001). Such considerations are said deductively to underwrite certain provisions of civil law (Aquinas 1948, I–​II, Q. 95, art. 2, 1015). Hence, this kind of natural-​law view weaves the right and the good together.

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In sharp contrast to a pragmatist view, however, Thomistic natural law casts morality as being wholly grounded in eternal truths that are independent of human inquiry. The achievable integration already lies latent in the eternal natures of goodness and of practical reason, as this view characterizes them. From a Thomistic perspective, this is a feature of the view, not a bug. CEP is a type of nonreductively integrative moral theory that allows human inquiry more scope in the determination of morality’s content than this, while maintaining a commitment to objectivity and a resistance to relativism or subjectivism. It takes it that the integration of the right and the good that is needed to account for morally right action is not eternally available, but rather is, at least in part, the contingent work of human inquiry. This will presumably involve adjusting the right and the good in light of each other, revising each to yield a more acceptable or more practically useful (and not less acceptable) overall view. An individual’s capacity so to proceed involves what John Dewey called “a pragmatic intelligence,” which “is inherently forward-​looking; only by ignoring its primary function does it become a mere means for an end already given.” It “is a creative intelligence, not a routine mechanic” (Dewey 1993, 7; also cf. Richardson 1995). This emphasis on the (at least partial) revisability of the right and the good is the key feature that makes this variant of a nonreductively integrative moral theory a pragmatist view.10 Merely emphasizing revisability would leave open the possibility of a corrosive flux. What makes CEP constructive is its insistence that inquiry aim at a fuller and more adequate working out of morality’s requirements. This insistence does not make the view a constructivist one, if that implies that ethical truths are generally understood as constituted by the outcome of some process of ideal inquiry. Especially since some will expect a pragmatist to take this line, I  want to emphasize that I am not doing so. As I indicated in the Introduction, my approach assumes that one may start with some objective moral principles. I am open to the possibility that these enjoy the kind of status that moral realists imagine that all moral principles do. The constructive ethical pragmatist, however, insists that where one starts out morally may—​despite the objectivity of the starting points—​not be an adequate place to rest. As I shall insist throughout, however, what matters morally is not where this or that nation or community

10.  This idea of revisability is prominent in the twentieth-​century pragmatists Morton G. White (1956, 263) and W. V. O. Quine (1960, chap. 1). Both of these sources are cited by Rawls (1999b, 507), in setting out his conception of moral justification, which does not rely on a priori grounds or necessary first principles. My understanding of the philosophical relationship among the views of White, Quine, and Rawls on these points is indebted to Botti (2014).

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comes to equilibrium in its moral reflections, but where the moral community, which includes all persons, does. In defining CEP, therefore, we need to do two things at once. We need to allow for morality being shaped by historically contingent pathways of deliberation without trying to compensate for this contingency by presupposing or postulating a unique, fated endpoint of common inquiry. At the same time, we need to avoid capitulating to a relativism that looks simply to divergent results of the perhaps-​idealized reflections of each individual. This is as far as I will go, here, in characterizing CEP. Summing up what has been said, I can provide the following initial definition, which we will be in a position to refine somewhat by the end of the book: Constructive ethical pragmatism is, roughly, the view that (a) which actions are right in a given circumstance is a function of the valid moral norms legitimately in place, where which ones are legitimately in place is partly a result of the moral community’s tacit reflective efforts to work out a well-​ integrated and coherent understanding of the right and the good; and (b) where the valid moral norms legitimately in place generate a practical indeterminacy, which actions are right may further be determined by additional efforts in that direction.11 This definition plainly does not offer a crisp criterion of right action, along the lines often offered by maximizing consequentialists. Instead, it takes a form more akin to what one might expect of a pluralist deontological view that affirms the existence of multiple moral norms or principles. It is distinguished from standard deontological views, however, by its incorporating reference to norms having arisen from contingent reflective efforts—​and, indeed, ones that take the good into account. The nature of the relevant function between the resulting norms and right action is something that I will not explore here. This book, however, will devote considerable attention to how contingent reflections can legitimately put additional—​or additionally specified—​moral norms in place. Despite not offering a crisp criterion of right action, CEP is of interest because it is incompatible with both consequentialism and deontology, as defined previously. It accordingly marks out a distinctive pathway for moral theorizing—​one

11. In Richardson (1995, 129—​both in the text and in n. 41), I ventured a pair of more definite-​ seeming glosses of CEP, somewhat along these same lines. These glosses were defective, however, in two ways:  first, because they deployed an unexplicated idea of optimality that was confusing and out of place; and second, because they are not equivalent with each other at any rate.

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that arises from allowing that the content of morality is at least in part subject to being continually worked out. If the content of morality were eternally fixed, it would make sense to work on refining the criteria of right action that summed it up. So long as this content is coherent, for instance, then one could set about deriving a conception of moral goodness, whatever its surface form, from the way that these criteria order actions. According to CEP, however, these criteria of rightness are subject to revision in light of this (or any relevant) conception of the good. Given this, reconstructing precise criteria that capture its supposed content at any given time is likely not to be an appealing or rewarding task, while reconstructing that content as a consequentialist theory (proper) will have little importance. Each of these efforts will be trying to hit a moving target. A role that moral theorizing could more sensibly hope to play, if CEP is correct, is that of facilitating the further legitimate shaping of morality, for instance by helping us reconcile contingently clashing commitments.12 It is not plausible to suppose that such efforts at human reflection might radically remake objective morality from scratch. Such changes as might arise from human reflection are apt to be incremental refinements. That being the case, the practical role that opens up for moral theorizing if CEP is correct is one that would be carried out, not on morality as such, but on this or that relatively definite range of moral problems. This is why, as I indicated at the start of the chapter, it makes sense to think of CEP as being instantiated, not in attempting to refine a summary criterion of right action, but in working more locally on some specific moral problem or other. Although the category of CEP has not been generally explored, examples of such an approach at work on a specific problem are not that hard to find. The great example remains Rawls’s effort to refine principles of justice for the basic structure of society by working out a reasonable way to reconcile what appear to be our clashing commitments to the goods of freedom and equality (Rawls 1999b, 179; also cf. Richardson 1995). Although Rawls is known for his attachment to what he had called “the priority of right,” he also wrote that “the right and the good are complementary” (2005, 173).

12. To say this is not to imply that moral theory in a CEP vein would have reason to exchange a philosopher’s concern with truth for a politician’s concern with power and influence. As I shall be arguing, the process of putting new moral norms legitimately in place requires that the relevant parties not believe that they are doing so in the case at hand. This stricture also applies to moral philosophers, insofar as they are contributing to this process. While they might recognize theoretically that they could be contributing to the formation of a new moral norm, they cannot do so unless they are humbly trying to generate the best view that they can of what morality requires in the range of cases under consideration.

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Now, that latter phrase might be thought to be referring simply to the fact that the good states the point while rightness sets limits; but the complementarity that he develops goes deeper than that. Rawls resisted the idea that a fully adequate account of the good can be developed without shaping it by reference to and by integrating elements of rightness.13 The sequence of six conceptions of the good at work in his view, as laid out in his Political Liberalism, works in tandem with a sequence of ways of refining conceptions of right. The result is that the good is limited and refined by reference to right and the right is elaborated and shaped by reference to the good (Rawls 2005, Lect. V). Each is framed in light of the other. The “priority of right” can be taken to refer to this shaping of the good by reference to the right, even though the shaping ends up being reciprocal. It is a remark about the resulting conceptions of the good (Rawls 1999b, §85). Rawls’s theory, viewed as if it were a temporal unfolding of thought on its way to reflective equilibrium, is thus one example of CEP at work. On a much smaller scale, and less explicitly, I have attempted to work in this way myself, on a specific topic in medical research ethics (Richardson 2012c). No doubt, not a few other works in moral theory would be susceptible to being redescribed as exemplifying CEP at work. I will offer an example of such a redescription in the next section. Having now explained what I  mean by “constructive ethical pragmatism,” I turn to arguing, in the remaining sections of this chapter, that it has important attractions as an approach to moral theory.

1.2 Moral Theory as Having a Practical Role In defending CEP, I will frequently highlight its ability to serve or guide the deliberation of ordinary people better than can its rivals. In taking this to be a crucial desideratum for ethical theory, I stand with Aristotle as against Plato, or at least as against some of Plato’s current academic followers. I recognize that there continue to be brilliant Platonists at work in moral philosophy—​people who tend to see themselves as trying to set out correct accounts of such concepts (as we now call them) as goodness, normative reasons, rightness, or justice. Some recent self-​described Platonists seem to accept the importance of guiding ordinary people’s deliberations.14

13. See, e.g., Rawls’s criticism of the adequacy of the candidate “dominant ends” that have been proffered by the Western philosophical tradition (Rawls 1999b, 83). 14. See, e.g., Cohen (2008). Cohen’s Platonist commitments led him to believe that all proper moral principles are a priori; however, he was also very concerned with articulating, on their

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But what shall we say to those philosophers, whether inspired by Plato or otherwise, who question this desideratum? Aristotle did not provide knock-​down arguments against Plato’s theory of ideas, and I certainly cannot pretend to demonstrate the misguidedness of his modern heirs. But I can at least provide some reasons why I stand with Aristotle in thinking that good work in ethics should not aim to be scientific, but should endeavor, rather, to provide people with an account of what they should be aiming at and why that will be helpful in better orienting their deliberation. Importantly, guiding people’s deliberation is not the same as telling them what to do. Consequentialist views are typically neatly structured so as, in principle, to generate a ranking of alternatives (alternative actions, systems of rules, character dispositions, etc.). This ranking may be consulted in order to determine what to do. Agents who feel at all alienated from the consequentialist view will feel, understandably, that this ranking simply tells them what to do, displacing all need for deliberation. Agents wholeheartedly endorsing the consequentialist view, instead, will simply find their deliberation drastically foreshortened. Their decision-​making is reduced to an operation as mechanical as looking up logarithms in a table or a calculator. Work must be done to ascertain the facts of one’s situation and the alternatives that it affords, and taking account of risk and uncertainty may require complex calculations; but the agent is not invited to consider the competing reasons why the various alternatives vary in their attractiveness:  those have already been taken into account by the ranking. Too often—​to use Pamela Hieronymi’s phrase (2013)—​the question of “the use of reasons in thought” is neglected. Simply to offer a ranking of alternatives is not to guide deliberation. Is being well able to serve or guide the deliberations of ordinary people an important desideratum for a moral theory? In posing this question, I in no way mean to question the importance of the moral truth. Rather, the approach that I  am associating with current Platonism and seek now to counter is a type of theory that pursues conceptual truths with an unconcern for whether the resulting theory can serve to guide ordinary people’s deliberations, thereby severely diminishing the chances that it will in the end be able to serve this purpose. By “guiding ordinary people’s deliberation,” I  do not have in mind some hypothetical possibility, such as that the theory would guide ordinary people’s deliberation if they were fully informed and had fully reasoned through the issues—​let alone the practically sterile fact that the theory in principle provides

basis, demands effectively addressed to individuals. I  will address Cohen’s methodological commitments in §9.2.

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determinate answers to what they should do, albeit ones that ordinary people are not in a position to process or access. On the other side, of course, it is not to be expected that any moral theory will actually guide every ordinary person’s deliberation. The sensible desideratum is not that a theory will do that, but that it presents insights that will be found sufficiently compelling or appealing by reasonable people that, over time, they might deliberatively take up and act on its arguments or principles. Many efforts at moral theory will fail to be taken up in this way by ordinary people, of course; still, it is important for moral theorists to keep this aim in view. Many readers will be disposed to agree with me that this is a relatively obvious desideratum for a moral theory. How can we convince those moral theorists who do not start by accepting it? The answer is, by appealing to other aims that they are likely to have and showing how these other aims connect to the aim of serving and guiding the deliberation of ordinary people. I begin with three such aims, which help generate a general argument for the importance of guiding deliberation, before turning to the relevance, more specifically, of reaching ordinary people. These three aims are those of avoiding shallowness, generating a theory that we have reason to care about, and asking sensible questions—​which means both avoiding nonsense and, more generally, using one’s time well. The issue of shallowness arises because of the way in which moral concepts are shaped by existing social institutions and practices. One need not generally be a social constructivist about concepts to recognize this. Indeed, we may concede for the sake of argument that some moral concepts have a meaning that is largely independent of these social forms. These will be thin concepts such as “good” and “right.” Perhaps their meanings impose some constraint on moral theories.15 Still, as we have come to realize, these conceptual constraints leave us very far from possessing a complete or satisfactory moral theory. Filling out these thin concepts in a way that takes moral theory beyond the most schematic of structural observations requires leaning on concepts that are entangled with historical social contexts. Asking a Socratic question, such as “What is justice?” was Western philosophy’s opening gambit in the effort to gain sufficient critical independence from actual contexts—​typically riddled with injustice and violence—​so as to construct a moral theory more objectively. More recent philosophical work, from Jean-​Jacques Rousseau, Georg Wilhelm Friedrich Hegel, and Karl Marx through the Frankfurt School and Rawls, and on

15. Consider, e.g., Rawls on “the formal constraints of the concept of right” set out in Rawls (1999b, §23) and Broome (1991) on the structure imposed by the betterness relation, impartially considered.

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to feminism and critical race theory, has revealed the extent to which our moral concepts can themselves become corrupted. That being so, it is naïve, and apt to generate shallow, unreflective moral theory, simply to rely on following conceptual analysis wherever it leads. We need to stop and reflect critically on ways in which the concepts that we are interrogating may have been corrupted by existing or past evils. Deploying in moral theory concepts that are thus corrupted is apt to generate implications that many find unacceptable upon reflection.16 We must remain alert to this possibility. Doing so effectively will require considering the purported guidance that the conceptual analysis generates for deliberation, and reflecting on whether it is acceptable. Never to reach the level of deliberative guidance is thus never to be able to profit, as a theorist, from this important kind of critical adjustment. Such critical adjustment occurs when people reconsider why a given verdict should be reached. This deliberative reassessment of what should be done—​ whether by a single agent in monadic isolation or by a group of people deliberating together—​goes via a consideration of the reasons why. For this to work well, these reasons should be ones that people find intelligible. Accordingly, in addition to having reasons not to peddle shallow, uncritical theories, moral philosophers have reason to hope that their theories give accounts of why alternatives should be taken that people generally have reason to care about. This hope is surely one of the reasons that philosophers are drawn to theorizing about moral concepts in the first place, but not, say, about the concepts central to inventory management. Indeed, a great tradition of moral philosophy has attempted to articulate what it is that people must care about. Immanuel Kant’s was one great such attempt, but he ended up simply postulating, as a “fact of reason,” that the moral law is supremely authoritative for us (Kant 2015, “Analytic,” §7, Ak. 31). More recently, philosophers have put forward theories that seek to generate moral conclusions by unpacking concepts that allegedly must apply to all of us, such as the concept of agency. Agents, as such, are argued to have a constitutive aim, one to which we must live up if we are to act as agents, which seems inescapable (see, e.g., Korsgaard 2009 and Ferrero 2009). David Enoch’s pithy objection to this approach—​the “shmagency objection”—​is that people “need not care about their qualifications as agents.” They can be “perfectly happy being shmagents—​nonagent things that lack the purportedly constitutive aim of agency, but that are as similar to agents as otherwise possible” (Enoch 2011a, 209; also cf. Enoch 2006).

16. See, e.g., the discussion of “purity” in Mills (2005, 176).

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The possibility of responding in this way to philosophical work on concepts that are allegedly constitutive of our existence or our nature suggests that, if one’s aim is to generate conclusions that we have reason to care about, one would do well to keep in mind the freedom of reflection that—​as Kant emphasized—​ we have as rational beings. Doing so requires openness not only to theoretical rebuttals but also, as the “shmagency” objection intimates, to people’s practical reactions. Whereas the previous argument for consulting people’s reflective practical responses concerned the critical adjustment of a theory’s starting points, this argument concerns the need for philosophical humility—​a need arising from the possibility that ordinary people, not just philosophers, may treat a philosopher’s modus ponens as a modus tollens. The constitutivist, for example, hopes to work with a concept that captures something that people may be presumed to care about; however, because what people care about is subject to reflective revision, a given conceptual argument instead may lead people to reject—​theoretically or with their feet—​its characterization of what they care about. A moral theory’s ability to engage the practical reflections of ordinary people is an important gauge of whether it has tapped into concepts or ideals that they care about. Philosophers may respond that a philosophical view can count as a beautiful achievement even if no ordinary people care about it; and no doubt that is so. Yet there is a more serious danger of which the philosopher must be wary—​namely, that of attempting to answer questions that make no sense. All branches of philosophy are vulnerable to doing this, for none of them is constrained by empirical data in the way that the natural sciences are.17 There are at least three reasons that philosophers may be led to ask questions that make no sense. The first arises from philosophy’s penchant for abstraction. Posing abstract questions always runs the risk of slipping the mooring of contexts or presuppositions needed to give the questions sense. This point is familiar with regard to questions about interpreting past philosophies. For instance, it is anachronistic to ask whether Aristotle’s ethics accepts or rejects the priority of the right over the good. The middle books of his Nicomachean Ethics seem to contain quite a complex account of the good, which embraces justice within it and includes the idea of acting for the sake of the fine or noble; but Aristotle was writing before the contrast between the right and the good had been clearly developed. A similar point applies to the philosophical questions that we now ask. For example, asking questions about the relative priority of equality or freedom, or of

17.  As I  write, there is an ongoing and lively debate about what the empirical study of psychology can contribute to ethical theory. See, e.g., Brink et al. (2014). I intend my qualification about how empirical data enter in to acknowledge that empirical work on ethical attitudes and responses can be highly informative for moral theory.

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autonomy and the care of dependents, makes sense against the backdrop of certain forms of life, but it may not make sense in abstracto. Rawls notes this about the concepts of rationality and reasonableness—​the two main aspects of practical reason, as he understands it. “Without conceptions of society and person,” such as those that are latent in the public political culture, he argues, “the principles of practical reason would have no point, use, or application” (Rawls 2005, 108). A second and somewhat broader reason that nonsense threatens was Delphically indicated by Ludwig Wittgenstein:  “Philosophy is a struggle against the bewitchment of our understanding by the resources of language” (Wittgenstein 2009, §109, 52e). The danger, we wrote, is that “language goes on holiday,” enticing us to pose questions that make no sense (2009, §38, 23e, emphasis omitted).18 At least in part, Wittgenstein’s warning was a reaction against his earlier, Tractarian vision of “crystalline purity” (§108, 51e). We philosophers press for ever-​deeper conceptions of the unconditioned basis and—​unconstrained by data from particle accelerators or gravity-​wave detectors—​we seem able always to conceive, ad libitum, a deeper level that needs explanation. A third reason that nonsense threatens is more boring, but again is connected to the quest for crystalline purity. In addition to having a penchant for abstraction, philosophers are talented at drawing distinctions. From this arises an ever-​present danger of scholasticism. In academic ethics, there are many pockets of work where distinctions among views or principles have become so fine-​grained that we lose our intuitive grip on what is at issue. The ease of constructing variants to the original Trolley Problem illustrates one way that this can happen.19 The axiomatic structure of social choice theory and rational choice theory illustrates another way in which the theoretical superstructure—​useful though it is—​can outrun our abilities reflectively to absorb the theoretician’s work. In mathematics, such fine-​grained distinctions can serve and benefit from a self-​enclosed exploration of a system of abstractions; but ethics, while not directly answerable to empirical data, is not a self-​enclosed system of abstractions either. The key to neutralizing all three of these reasons why one might be led to ask nonsensical questions, I  want to suggest, is to maintain a link to our practical

18.  My gloss on what happens when language goes “on holiday” is deliberately flat-​footed. Despite having undergone a serious course of would-​ be indoctrination in therapeutic Wittgensteineanism in graduate school, I  was never able to grasp what was supposed to be meant by “deep nonsense.” 19. The original Trolley Problem, posed by Philippa Foot (1967) raised the question of whether it is permissible, or perhaps even required, to divert a fatal threat away from five people if that means that another person will die.

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concerns. Wittgenstein eloquently suggested as much, at least metaphorically. Alluding to his earlier philosophical method, he wrote that “The preconception of crystalline purity can only be removed by turning our whole examination around. (One might say: the inquiry must be turned around, but on the pivot of our real need)” (Wittgenstein 2009, §108, 51e). And again, in an even more famous metaphor: “We have got onto slippery ice where there is no friction and so, in a certain sense, the conditions are ideal, but also, just because of that, we are unable to walk. We want to walk: so we need friction. Back to the rough ground!” (§107, 51e). I am not sure what to say about the rest of philosophy; but ethics, at least, has the option of being responsive to our real needs. I hesitate to offer a metaphor to compete with Wittgenstein’s; but one way to see the problem is this: When we think philosophically, our capacities for abstraction and distinction generate problems with too many degrees of freedom. Some constraint from outside the system of thought is needed to make the problems manageable, while maintaining their connection to real concerns. The most readily available source of “friction” to serve this role in ethics—​the place where ethical theorizing can get a grip—​is the practical link with ordinary people’s deliberations. People want to move forward, and could use guidance as they do so. All three of these concerns—​ those of avoiding shallowness, avoiding generating a theory that no one has reason to care about, and avoiding nonsense—​thus give philosophers at least instrumental reason to produce theories that can guide people’s practical deliberations. In making these arguments, however, I have not laid any stress on the ordinariness of the people with whom the theorists have reason to connect. Might it be enough to connect only with the deliberations of an elite? The first thing to say against this suggestion is that it clashes sharply with a deep ethical commitment to which I alluded in §I.4—​namely, the fundamental equality of moral persons. Secondly, this concern is heightened by the fact that the philosophers about whom I am mainly speaking are academic philosophers, of which I am one. We academic philosophers are dependent, one way or another—​albeit less so when working in public universities—​on the accumulated surpluses of capitalism. If for no other reason than that, we are part of an elite whose perspective paradigmatically stands in need of critique. To some extent, we can do this critical work on ourselves, but it would be hubris to think that we can do that well without making any effort to engage the viewpoints of ordinary people. A third reason that this effort is so important is that, as recent feminist writers have been especially good at pointing out, people’s specific life-​situations give them access to types of morally relevant knowledge that otherwise will remain

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untapped (see Young 2000 and Harding 2004).20 Hence, we should conclude that rather than remaining practically aloof or addressing themselves solely to elites, moral theories should aim to connect with ordinary people’s deliberations.21 As we have seen, this is not simply a matter of telling them what to do, but—​after listening to them—​of providing them with an understanding of the reasons that bear on why they ought to do things. Having now argued that guiding the deliberations of ordinary people is an important desideratum for a moral theory, I turn to setting out some of CEP’s important attractions as an approach to moral theory—​a discussion that will appeal to this desideratum at a number of points.

1.3 The Flexibility of Constructive Ethical Pragmatism Because it is committed neither to positing a fixed interpretation of the good nor a fixed list of principles of right, CEP has the flexibility to follow where reasonable reflection may lead, so as to avoid, as appropriate, the major intuitive objections to consequentialism and deontology. As indicated previously, the major objection to consequentialism is its tendency to endorse person-​violations that maximize the good; and the major objection to deontology is the difficulty of explaining—​without simply fetishizing deontological rules—​why it is that if a person-​violation of a certain sort is bad, it would not be better to carry out one such violation to minimize such violations in the long run. Machiavelli (1995, chs. 8 and 16) can be read as one of the first to push this problem of “violation-​ minimizing violations” (Applbaum 1998, 340; also cf. Williams 1973). It often will turn out, he argued, that refusing to be cruel now will force one to be more cruel, more often, later. CEP allows us to step away from the notion that maximizing the good is reasonable or feasible for us to pursue but—​by weaving elements of the good together with principles of right—​also to avoid falling into rule-​fetishism. More generally, it would be desirable to have a warranted basis for leaving behind the idea of maximizing the good because there are many cases in which 20. I am grateful to Madeline Eller and Ashli Godfrey for bringing to my attention the relevance of standpoint theory. 21. I do not mean to say that each effort at moral theory ought to aim to be useful in guiding everyone’s deliberations. I am not impugning the approaches of the Stoics or the Epicureans, who offered arguments aimed at engaging those who aim to be a sage. After all, CEP, as I have indicated, supports the idea of working on one kind of problem at a time. In my own work, for example, I have supposed that it is apt to do moral theory in a way that is primarily addressed to those who are engaged (as researchers, research participants, or otherwise) in the enterprise of medical research on human subjects.

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this idea fails to guide us. Cases such as Machiavelli’s, or the trolley cases now in vogue, where the alternatives, from a consequentialist point of view, differ only in terms of how much of a given good or bad is produced, are atypical and somewhat artificial. Bonum est multiplex, as Aquinas rightly affirmed: there are many kinds of goods. Very often, when we face a morally difficult choice, these goods are at odds with each other. We are not in a position to capture everything we care about in terms of a single good, whose greater or lesser instantiation can serve as a benchmark adequately capable of guiding our deliberations.22 There are, in other words, multiple, mutually incommensurable goods. The sort of incommensurability relevant here does not entail that the choiceworthiness of a given pair of options cannot be compared, although it can help explain incomparability; rather, the deliberative incommensurability that matters here sets a limit on how the relative choiceworthiness of options may be determined for the purposes of deliberation. Deliberative commensurability holds (whether for a pair of options in a given choice or for all options and choices) just in case the considerations bearing on choice can be arrayed adequately prior to the choice—​so, for the purposes of deliberation—​simply in terms of the greater or lesser instantiation of some single good (see Richardson 1992a and Temkin 2012, 171–​175). Deliberative incommensurability also holds when this cannot be done. Not infrequently, philosophers’ proposed candidates for a commensurating ultimate end present a mere appearance of unidimensionality, which perhaps conceals vagueness and ambiguity. Aristotle observed that widespread verbal agreement that happiness (eudaimonia) is the highest good coincided with wild divergence in what people meant by “happiness” (Aristotle, Nicomachean Ethics [N.E.] I.4, 1095a16–​30). Our contemporary understanding of happiness similarly seems flexible enough to apply to subjectively appreciated success in the pursuit of all sorts of different endeavors (cf. Rawls 1999b, 482). A less obvious case of this type is that of pleasure. Even without broaching Mill’s controversial hypothesis about there being higher and lower pleasures (1988, 8–​11: chap. 2) or Aristotle’s thought that pleasures differ in kind because “each  .  .  .  is bound up with the activity it completes,” we can see how aspects of pleasure can become mutually incommensurable (1984, 1858:  N.E. X.5, 1175a29). In Plato’s Protagoras, justly known for its having introduced—​perhaps 22.  Here, I  second the considerations put forward in Rawls (1999b, §§83 and 84):  The preference-​based idea of utility cannot guide people’s deliberations (in its capacity as a good) because it supervenes upon the upshot of their deliberations; and the substantive candidates that we can think of for a single “dominant end” are unacceptable. In this discussion, I will come shortly to goods that, while appealing and potentially able to steer deliberation, only appear to be unidimensional.

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ironically, perhaps not—​a “science” of practical measurement, we find Socrates distinguishing among four quantitative questions. We must ask about the number of pleasures, their duration, their size, and their remoteness (Richardson 1990a). While the product of duration and size naturally might be taken as giving the amount of pleasure experienced over time, something else is going on with the mention of the number and the remoteness of pleasures. If the “number” of pleasures is important over and above their duration and size, that seems likely to be because of the importance, to a good life, of experiencing a variety of qualitatively distinct types of pleasures—​regardless of whether any of them are “higher” than any of the others. Holding fixed the amount (size × duration) of pleasure, a life in which all the pleasure comes either from satisfying food or from hard work can seem less good overall than one in which the pleasure comes from satisfying food, hard work, and hearty conviviality. In cases where the number of pleasures and the amount of pleasures pull in opposite directions, however, these two components can be seen to be deliberatively incommensurable. If the life with only the pleasures of food and hard work contains a greater amount of pleasure than the life that also has the pleasures of conviviality, then—​holding the remoteness of these pleasures constant—​there is, on the account of pleasure that seems to emerge from the Protagoras, no quantitative basis for choosing between the two. The last of the Protagoras’s types of quantitative comparison, bearing on the remoteness of pleasures, brings us to the more general issue of risk and uncertainty.23 Let there be some measure of the goodness of any act’s outcome—​where the outcome includes the act itself. As is now well known, this will not suffice as a basis for choosing which action one ought to do. Because of risk and uncertainty, we are generally not in the position simply to select a definite outcome. It may then be suggested that one “ought . . . to do the act whose outcome has the greatest expected goodness” (Parfit 1984, 25). The trouble with this idea is that people seem to care about risk and uncertainty (cf. Broome 1991, 124–​125; Allais 1979; Savage 1954). They are not generally neutral about risk in the way that this expected-​value formulation presuppose—​or imposes. The notion of evaluation or comparative goodness is flexible enough to fold this consideration of risk; but this is another trade-​off that the agent must make, reflectively or not. In cases involving risk and uncertainty, maximizing expected value can clash with making adequate provision for the downside risk. The fact that risk and uncertainty is superimposed on the space of alternatives as defined in terms of

23. Of course, Plato’s contrast between nearness and remoteness could also, or instead, be read as raising issues of time discounting.

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outcomes (as opposed to the way that the alternatives are structured) dramatizes the difficulty of appealing to a metric of outcome goodness to settle how to make this choice.24 The goodness pertaining to the riskiness of good or bad outcomes seems to be incommensurable with the goodness or badness of the outcomes itself. Accordingly, the issue of risk can be seen as adding to our strong reasons to think that even if the good is singular, in the sense that it is united under a single umbrella, it is nonetheless plural, in the sense of comprising or giving rise to multiple, mutually incommensurable aspects. To be sure, the issue of risk also poses an obvious challenge to someone like me, who champions multidimensionality. Multidimensionality makes maximization difficult, but with regard to risk and uncertainty, it seems to be crippling because it makes maximizing expected value—​the going way of modeling reasoning in the face of risk and uncertainty, assuming that risk aversion may be simply factored in—​seem quite impossible.25 But this objection puts the cart before the horse. If we have no sound basis for reducing the relevant normative considerations to a single dimension, then it can only mislead us to maximize expected value under the false pretense of having carried out such a reduction. Furthermore, there remains at least the possibility of using expected-​value reasoning piecemeal with each of many evaluative dimensions, taken one at a time (see, e.g., Keeney and Raiffa 1993). Here, too, our capacity of critical reflection appears to be an obstacle to a moral philosopher’s relying solely on working with our concepts, without checking in with what we care about. Again, bonum est multiplex—​at least for mundane agents not enjoying “the certitude of the Divine Vision” (Aquinas 1948, 414: I, Q. 82, art. 2).26 Perhaps the most interesting case of such a beatific vision failing us is Henry Sidgwick’s inability to resolve “the dualism of practical reason” (1981, xii, 507–​509). Sidgwick was the most articulate exponent for the necessity of finding an account of the good that could adjudicate practical conflicts: a “dominant end” (Rawls 1999b, §83), to which we could appeal in first-​person deliberation (Richardson 1991).

24. Broome’s suggestion (1991, 146–​148) goes in the other direction. In such a case, when you face the question of “which prospect is better for you,” you must weigh the two alternatives against each other. This weighing—​accomplished one knows not how (Broome cryptically remarks at p. 148 that “[t]‌he test of whether one difference in good outweighs another . . . is not an empirical matter”)—​then defines or determines that person’s “notion of good.” 25. However, see now Lazar (2017). 26. I am indebted to Wedgwood (2009, 499) for this reference. Because Aquinas there argues from the distinction between goods that have a necessary connection with happiness and those that do not, I think that this famous phrase is more naturally taken as referring to a plurality of goods than it is to a plurality of concepts or conceptions of goodness, which is the direction in which Wedgwood takes it.

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To his frustration, he found himself unable to adjudicate between two competing standards of adjudication: egoistic hedonism and impartial, utilitarian hedonism. There are many ways to describe this dualism, but here is one, whose terms will be familiar from our discussion of the moral point of view. Stipulating that pleasure is the good underdetermines what we ought to do. Upon reasonable reflection, we both care impartially about everyone’s good and care especially about our own individual good. Egoistically considered pleasure and impartially considered pleasure appear here to be mutually incommensurable. Sidgwick’s dualism of practical reason suggests that even a consequentialist who is simply seeking to settle on an appropriate characterization of the good that is to be maximized will find reason to distinguish between agent-​centered and impartial reasons. That distinction is not simply a maneuver that deontologists reach for in attempting to evade the problem of violation-​minimizing violations. As John Broome has well emphasized, the idea of evaluation is supple enough to be responsive to any consideration that we take to make one action better than another (Broome 1991, 10–​16).27 Recognizing the kind of deliberative incommensurability just surveyed, CEP steps away from the idea of appealing only to a ranking of alternatives in terms of the good. It does not, however, leap into the arms of deontology. It is understandable why, faced with an inevitable incommensurability of goods, the moral theorist might flee for the certainty of sharp, even absolute deontological principles. As attempts to work out Kant’s view have illustrated, however, it is difficult to explain the authority of principles of right without leaning to some degree on a conception of the good. Kant gave us a taste of what a strict priority of right might look like, suggesting that the moral law induces a partial conception of the good rather than depending on one to generate determinate guidance; however, even so, the determinate guidance is difficult to extract from Kant’s view. His contradiction-​in-​the-​will test, in particular, seems to rely on further assumptions about the good.28 Yet when Kantians thus weaken the bulwark of a priori practical reason by allowing the incursion upon the right of contingent conceptions

27. Broome argues that goodness provides ethics with a structure, not with a good to be aimed at; but in arguing this, he simply sets aside the problem of incommensurability (1991, 137), which I  have been emphasizing in the text (interpreting it as a ground for orderings being incomplete, rather than simply as the fact of their being incomplete). Recall the dual-​ranking consequentialism in Portmore (2011), which addresses Sidgwick’s dualism in a particularly forthright manner. 28. John Rawls, for instance, offers, as “one way out” of the problem of the indeterminacy of Kant’s contradiction-​in-​the-​will test, an appeal to the conception of the good that consists in an appeal to “true human needs” (Rawls 2000, 173, cf. 221).

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of the good and contingent production of good and bad, they are no longer well positioned to hold the line in favor of a strict deontology.29 The Machiavellian press against deontology depends upon the defender of principles not happily fetishizing them—​that is, not simply treating them as self-​ evidently important in themselves—​and thus reaching for ways of explaining what is good about honoring them or bad about violating them. Once such a rationale has been offered, the Machiavellian opponent is ready to devise a case in which that specific bad in question will be minimized by violating the principle. The suppleness of evaluation just noted, however, can come to the rescue of principles, if not of deontology as I have defined it. It can allow further refinement of the principle’s evaluative rationale (e.g., by distinguishing the badness of my doing something that results in others killing someone from the badness of my killing someone). Instead of responding to the incommensurability of goods—​or of the aspects of goodness—​by finding refuge in a strict deontology, CEP counsels taking advantage of this kind of possibility for progressive refinement by understanding the content of the good and the right as needing to be worked out in light of each other. It is no accident that examples of a philosopher attempting to do this on a wholesale basis are hard to find. This task is unworkable in its full generality and can be done sensibly only for a relatively well defined problem.30 The problem could be a large-​scale one. As I have already mentioned, Rawls’s attempt to articulate principles of justice for the basic structure of society that reconcile the contingent clash between freedom and equality can be seen as such an effort. A quite different example of moral theorizing that I would like to coopt, without the author’s permission, into this constructive ethical pragmatist category is Alex Voorhoeve’s elegant account of how we should aggregate the competing claims of others when both the severity of the ills that we have the power to alleviate and the numbers of claimants differ (Voorhoeve 2014).31 Interestingly, Voorhoeve’s account is quite accepting of the idea of aggregating goods across different people, within limits, and lays no stress on the incommensurability of different goods.32 Instead, the operative idea is that, for the purposes

29. I do not mean to imply that Kantians need to be committed to defending deontology. For an argument that they should not be, see Herman (1993). 30. Further, if the main argument of this book is correct, philosophers have only a facilitative role to play in how the right and the good get worked out legitimately in light of each other by the moral community. 31. I do not mean that Voorhoeve’s approach entails that he is committed to CEP, but only that he proceeds in a way that well illustrates what CEP would recommend. 32. An argument from the pervasive deliberative incommensurability of goods such as I have offered in this discussion, however, could serve as a basis for insulating Voorhoeve’s position

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of certain choices, some goods are not relevant to others. His argument presents a good example of refining the good and the right in light of each other. Voorhoeve constructs a principled account that supports and makes sense of common intuitions about two different sorts of cases of this type, each involving “a morally-​motivated stranger who, using [his] own resources, can help others at negligible cost to [himself ]” (2014, 64). Case 1 involves a choice between fully curing one young person’s terminal illness and curing a certain number of other young people of a seriously disabling illness. Case 2 involves a choice between fully curing one young person’s terminal illness and curing a number of other young people of a minor illness that would simply keep them in bed for a day. The common pair of intuitions that Voorhoeve starts from are the following: First, there is some number of people with the potentially disabling disease, such that one ought to save them from disability instead of saving the one person from death; whereas, second, there is no number of people with the minor disease such that one ought to save them from being bedridden for a day instead of saving the one person from death. As he notes, the former intuition seems to reflect an aggregative approach, which “attractive[ly] . . . asserts the unvarying and equal marginal importance of each additional person’s claim of a given strength,” and so supports the view that one should do what “satisfies the greatest possible sum of strength-​weighted claims” (Voorhoeve 2014, 68). The latter intuition, by contrast, can be seen as reflecting the sympathetic exercise of standing in another person’s shoes. That sort of perspective, Voorhoeve well shows, supports the view that the person with the strongest claim should prevail. A number of philosophers have thus suggested, as he notes, that the aggregative view holds to a point, but that when the disparity in the severity of the ills in question becomes too great, the sympathy-​based view takes over, blocking aggregation (Voorhoeve 2014, 68). This suggestion, however, will seem ad hoc and implausible unless there is a principled basis for drawing the line. Voorhoeve’s creative suggestion is that we have recourse to moral judgments in another sphere in order to help us deal with these relatively complex comparisons. This other sphere is that of the personal moral prerogative that one seems to have to choose to avert a lesser harm to oneself rather than averting a somewhat greater harm to another. To be sure, the precise boundaries of this prerogative will be debated; but Voorhoeve assumes for the sake of argument that there is such a prerogative. If so, it can be used to define a criterion of whether one type of harm is relevant to another. And this criterion of relevance can then be transferred back to from attacks by those who assume that the default position that needs to be defeated is that what we should be doing is maximizing aggregate goodness, such as the one offered in Halstead (2016).

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the context of choosing between averting ills to strangers, where both the severity of the harms and the numbers of people threatened by them differ. (Roughly, the idea is that if it is permissible for an agent to prefer sparing himself a harm of type A over sparing the other a harm of type B, then in aggregating strangers’ claims, harms of type B are not relevant to harms of type A.) This yields what Voorhoeve calls the principle of Aggregate Relevant Claims. According to this principle, aggregative thinking prevails so long as the claims in question are relevant to each other, in this sense; if they are not, the sympathy-​based, nonaggregative idea of honoring the strongest claim prevails. This quick sketch of Voorhoeve’s defense of Aggregate Relevant Claims hardly does justice to his argument. However, what I want to draw attention to and to commend here is his general way of proceeding. In the article summarized in this discussion, Voorhoeve has chosen a relatively circumscribed topic, which sits at the tip of an iceberg whose most menacing masses and clefts lie under the surface. This murkier domain is deeply and thoroughly explored by Larry Temkin (2012). After surveying a vast territory, he concludes that it is very difficult to reconcile our deep attachment to “additive aggregationist” thinking, which seems to hold sway most firmly when the alternatives being compared are “near” each other, with our simultaneous attachment to “anti-​additive-​aggregationist” thinking, which seems to hold sway most firmly when the alternatives being compared are “far apart” from one another (Temkin 2012, 479–​480). Here, we seem to have a dualism of moral-​practical reason to rival Sidgwick’s. Aware of Temkin’s broad and deep worries, but nevertheless undaunted, Voorhoeve has picked a relatively small part of this problem and has offered a solution in the spirit of offering reasonable practical guidance. As his willingness to start from a set of intuitions about personal prerogative indicates, he does not seek an overall resolution to the dualism of moral-​practical reason that Temkin adumbrates. That is, he does not seek to reconcile the broad tension between the aggregative and nonaggregative aspects of our moral reasoning that could combine with an account of the good—​of harms and benefits—​to yield a fully general solution. Rather, he reasonably takes it that we may start with both some gradations of goodness and some considered judgments about what is right or permissible, and shows how they may be put together to generate a more fully specified principle that will help resolve a specific instance of the broader underlying clash. In all these respects, Voorhoeve’s way of proceeding is similar to Rawls’s. Each starts with a delimited topic—​neither with the whole of morality or even the whole of distributive justice (in Rawls’s case) or distributive ethics (in Voorhoeve’s case). To make progress with their chosen topic, each weaves together, in creative ways, initial conceptions of the good and of the right to generate an argument

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for more specific principles. Unlike Rawls’s theory, which is obviously a lot more elaborate, Voorhoeve’s does not suggest any revision to the initial conceptions of the good; but once Aggregate Relevant Claims were in place, experience with it well might do so. Considerations arising from the context of the agent’s prerogative to prefer averting harms to oneself might be used as a basis for revising the initial ranking of harms. The theoretical accounts that result from Rawls’s and Voorhoeve’s efforts are limited in scope. They do not purport to capture all moral considerations—​ only those that arise regarding the problem at hand. These limitations of scope and of the range of integrated considerations may be thought as serious defects; but—​as I  shall now argue more systematically—​by starting in medias res with an initial sense of what is relevant to a specific problem that arises, these sorts of approaches stand a far better chance of guiding deliberation than do approaches that reject any scope limitation and aim to integrate all considerations into an overall ranking of some sort.

1.4 Constructive Ethical Pragmatism Will Guide Deliberation Better Thus far, I  have argued that moral theory has an important practical role to play—​that of guiding the deliberation of ordinary people. Now I will argue that CEP is liable to do better at this than either consequentialism or deontology. Deontological theories are apt to muddle guidance by proliferating complex and finely distinguished principles, or to punt on guidance by casting all principles as merely prima facie or ceteris paribus principles that need to be balanced when they conflict—​and sometimes they do both at once. Consequentialism could guide choices wonderfully, if only we had in hand an adequate ranking of alternatives as better or worse; but we don’t. By contrast, CEP, as suggested in the previous section, invites and facilitates a piecemeal movement of moral theorizing toward understandings that better integrate reflectively acceptable stances with clear rationales. A pluralist, intuitionist deontology, such as that of W. D. Ross, at least has the advantage of recognizing that there are various distinct grounds of obligation. One of these, addressed by the prima facie duty of beneficence, is the general promotion of people’s well-​being; but the grounds of the duties of reparation, gratitude, justice, and nonmaleficence in each case are quite distinct from the duty of beneficence’s ground and from each other’s. When these various duties conflict, Ross famously held, we must fall back on the intuitive judgment of the person of practical wisdom (1988, 42). Rawls persuasively argued that this sort

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of view leaves too much to inarticulable intuition to serve as an adequate basis for a public conception of justice (1999b, §7). Now, Rawls rests the moral importance of publicity on his Kantian understanding of the concept of rightness (1999b, 115). Here, partly because I  am talking about morality in general and not only about justice, I would emphasize instead the importance of publicity about the grounds of moral requirements to the perspicuous guidance of action, interpersonal deliberation about what ought to be done, and to the refinement of our understanding.33 Too heavy a reliance on intuitive balancing leaves deliberation relatively unguided by the theory’s principles. An individual’s statement that “for me, consideration A outweighs consideration B” purports to close debate rather than inviting it. Yet well-​focused debate and discussion can be very helpful to refining moral understanding. Whereas intuitionist deontology largely passes the buck to intuitive balancing, another style of deontology seeks to state exceptionless principles and, making liberal use of hypothetical cases, generates refined principles of considerable complexity (see, e.g., Kamm 2007). Ingenious variations on trolley cases, for example, generate ingenious variations on principles. Part of the pressure toward complexifying principles derives from the generality of the questions pursued by much recent work in deontology. If the question to be answered is, “When is it permissible for some to harm others?” then one’s ethical sounding board is exposed to a vast range of cases, involving not only trolleys but also bombers, ambulances on the way to the hospital, niches into which to duck, and persons available as shields. CEP emphasizes the importance of specifying principles, but it also emphasizes the aptness of deliberatively revising our understandings the right and the good in light of each other, in order to generate a moral conception that, upon reflection, we take to guide our actions well. The problem with overcomplexifying principles is that they become too complex to be used even by very bright deliberators. To be sure, some complexity is called for. Frances Kamm, for one, explicitly resists Rawls’s idea of “pruning and adjusting” our considered judgments (Rawls 1999b, 18), casting that as a recourse to be postponed. “If we never come up with morally significant results” by collecting as many specific considered judgments as we can and discerning the moral distinctions that they bring to light, she writes that “we may have to resort to the method of reflective equilibrium which may prune the judgments used as data” (Kamm 2007, 188 n. 92, also cf. 167). Of course, within the enterprise of moral theory, having a diversity of approaches will generate

33. For an earlier attempt at arguments in this direction, see Richardson (2000, 287–​303).

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insight, but the value of moral insight is questionable if it cannot contribute to guiding deliberation. While it is common for contemporary deontology to postpone an appeal to the reflective phase of pruning and adjusting, the approach of traditional forms of consequentialism has been quite different. They tended to be more definite about the good. They also were often more reformist or even Procrustean, simply holding, like Jeremy Bentham, that considered judgments should give way to the insights of a theory grounded in self-​evident premises. Among nineteenth-​ century consequentialists, Sidgwick was more accommodating; he made serious efforts to reconcile his view with common-​sense convictions. Although he worked with a definite account of the good, identifying it as pleasure, he also was willing to do some pruning and adjusting (Sidgwick 1981, 373–​374). Yet as I have noted, his effort at reconciliation did not lead to a uniquely stable resting point, leaving him—​and, as he put it, reason itself—​undecided between utilitarianism and egoistic hedonism. Few contemporary consequentialists operate with a characterization of the good that is as definite as that of the hedonists.34 As a result, they have little reason to do any Procrustean lopping of common sense’s limbs. Consider the forms of consequentialism that characterize the good in terms of preference satisfaction, desire satisfaction, and a plurality of goods. Because actual preferences and desires are often objectionable, crazy, or simply based on a mistake, consequentialist views building on preferences or desires typically presuppose some idealization, such as that of ideally informed desires or fully thought-​through preferences. Although the consequentialists who work with a plurality of goods instead are less likely to need to quarantine or neutralize tainted starting points, they end up with similar idealizations, if for a different reason. They need to presuppose that it is possible to generate at least a partial ordering of options on the basis of input pertaining to the plural goods in question. Hence, all three of these forms of consequentialism proleptically invoke a pruned-​and-​adjusted understanding of the good—​whether in terms of informed desires, fully thought-​through preferences, or the conversion of a plurality of goods into a single ordering. Here, the practical problem is plain: we lack access to any such idealized understandings. Because we lack epistemic access to the rankings needed to apply these forms of consequentialism, they cannot guide the deliberations of ordinary people. Instead of hanging its hat on our arriving at principles of right that are proof against intuitive counterexamples, or on our arriving at a fully thought-​through 34. As I indicated at the outset of this chapter, I am setting aside, as not falling within consequentialism as I define it here, the anodyne consequentialism of the consequentializers, who work simply with the idea of ranking alternatives, on whatever basis.

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ranking of alternatives as better or worse, CEP counsels that we begin in medias res and work—​with all critical ingenuity—​with the materials at hand. Because we can do this, a moral theory that asks us to do this is not blocked by its ambitions from guiding deliberation. Of course, we have no reason to expect that we ever will reach a fully adequate and complete mutual adjustment of the right and the good to each other. This is a corollary of the fact that we cannot expect to arrive at a fully thought-​through ranking of the goodness or badness of alternative actions. As I  have framed it here, CEP does not depend, conceptually or otherwise, on our ever reaching such a final resting place of moral reflection. Instead of characterizing a type of moral theory that looks forward, proleptically, to our already having attained such ultimate wisdom, it characterizes right and wrong actions in accessible terms, while supposing that, at least sometimes, reflective revisions in our understandings of the good and the right can work a change in the moral norms that have a claim to guiding our actions. Accordingly, it ties rightness and wrongness, not to some ultimate working out of everything that is apt to remain forever out of reach, but to the working out of more specific or definite moral content that is available to us now. CEP does not massively anticipate some ideal endpoint of philosophical reflection on morality. Instead, it works from where we are toward more a concrete and coherent understanding, which in turn will shape the moral problems of the future. I have argued in this chapter that CEP has the flexibility to avoid the major pitfalls that trouble deontological and consequentialist theories. In addition, I  have made a case for thinking that it can guide deliberation better than can either of these rivals. CEP presupposes, however—​both in general and for its claim to superiority in guiding deliberation—​that the moral community can legitimately put in place new, or newly specified, moral norms. Defending this possibility is this book’s main task, to which I now turn.

II

THE MORAL AUTHORITY OF THE MORAL COMMUNITY

2

THE IDEA OF THE MORAL COMMUNITY

The whole of Part II will be devoted to laying out and developing the three-​stage account of how the moral community can become articulate, in the sense of gaining an authoritative voice. To get this account off the ground, it will be important to investigate further how articulation in the engineer’s or biologist’s sense applies to the moral community. So far (in §I.2), I have introduced this latter sense only in a metaphorical way. Articulation, in this sense, is a structural feature of an organism or machine that allows the parts to move in some independence of the whole. This kind of articulation is essential to how most animals—​and many robots—​move. A foot is swung forward, the ankle flexes, and the torso follows. You can see from the nature of the three-​stage account of indeterminacy-​reducing moral progress how an analogous kind of articulation is needed. Pairs of individuals, morally bound by a special obligation, need to be able to get out ahead of the rest of the community with candidate moral innovations. Because these have merely particular jurisdiction (as applying only to the two individuals), they fall far short of being new moral norms; but if these moral agents can get out in front in this way, then the rest of the moral community sometimes can follow—​ultimately, by ratifying a candidate moral norm that has become, de facto, a convergent social norm. To get beyond this analogy to animal and robot movement and begin to think seriously about how the moral community can become dynamic—​not in space, but in its content—​we need to begin with an account of its structure. Before we can understand how the complex whole alters itself, we must understand its anatomy. And before we can understand how the moral community, as a complex whole, alters itself, we must better understand what it is. We need a general way of conceiving the moral community and how it is structured. Only if it has a definite structure can it have parts that alter in stepwise fashion. I will begin this chapter by laying out a general anatomical account of the moral community. I then turn to Kant’s idea of ethical community to illuminate why we might care about whether the moral

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community has any real existence. The answer has to do with how our ethical duties are determined via shared norms. Armed with this understanding of why it is important that the moral community has real, and not just notional, existence, we will return to the question of its anatomy, looking at how moral norms articulate its structure. Finally, we will take up a challenge, posed by Michael Thompson, bearing on what it takes for the moral community to exist.

2.1 Ways of Modeling the Moral Community Our topic is the moral community, embracing all persons. As described in §I.1, it is the community projected by morality’s insensitivity to the particular identities of persons. Focusing on the moral community in this way, however, poses a challenge to my attempt to be sufficiently concrete to describe the contingent path of the moral community in history. Here, we seem to face a dilemma that can be put in terms of a contrast between Kantian and Hegelian ways of modeling moral community. The best-​known Kantian way asks us to conceive of a “kingdom of ends” as an a priori ideal consisting of an harmonious assemblage of moral persons acting as legislators, each concurring in endorsing universalizable ways of acting (Kant 1998b, 45–​4 6: Ak. 4:438). This ideal seems wholly outside of time, and hence not subject to change. Perhaps the best-​known Hegelian way of conceiving of moral community, by contrast, emphasizes the psychological and constitutive role of concrete and specific human communities in shaping human babies into proper individuals (see, e.g., Pinkard 1994, Honneth 1995, Pippin 2000, Bagnoli 2007). This is unpromising as a strategy for reconstructing the idea of the moral community, however, which includes all beings bound by morality.1 Since my account of indeterminacy-​reducing moral progress is predicated on the idea of authoritative moral change, it must concern itself with all beings bound by morality. Given the fundamental moral equality of all individual persons,2 which I  take to be 1. Although Bagnoli (2007) falls into largely talking about this or that concrete human community, her emphasis on the relational aspect of recognition is potentially promising as a basis for modeling the moral community. However, emphasizing mutual recognition rather than relational or directed duties, as I  do, has the disadvantage of being quite restrictive as to the community’s membership. As I will be indicating shortly, the conception of the moral community defended here is one on which the question of the scope of its membership is left reasonably open. 2. This axiom of the fundamental equality of individual moral persons is an ideal, not a descriptive claim: it expresses the fact that morality is committed to addressing all individuals as equal persons. It speaks of individual persons, as opposed to corporate persons—​the latter an idea familiar from the law and derivatively important in morality. Corporate persons have individual persons as components. For corporations to steal from others or to mistreat their

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axiomatic, the authority to institute changes in morality, if it has any empirical reality, must surely ultimately lie with the moral community as a whole, not with this or that contingent community that embraces only a subset of those persons bound by morality. Hence, for my account to go forward, it will require a way of accounting for the moral community that differs from both the sort of a priori account exemplified by Kant’s idea of the kingdom of ends and the Hegelian emphasis on the ways that particular communities shape individuals. That the moral community has some structure tends to be implied by the term “community.” This simple fact perhaps has been lost sight of in most recent philosophical discussions of the moral community, in which the principal focus has been on determining which entities count as having moral status (see, e.g., Shoemaker 2007). The set of all persons, otherwise unqualified, would no more seem to count as any kind of community than does the set of all hermits. I will argue, however, that the idea of the set of all persons can be spelled out in a natural way that makes explicit the structural features latent in that idea. The general account of the moral community and its structure developed in this chapter entails that the moral community is articulated in the engineer’s sense, and hence is potentially subject to change. I will explain in this chapter how it is articulated, postponing until the next chapter my explanation of how its parts can begin to shift. To begin to lay out the kind of structure that is definitive of the moral community, we may draw insights from recent controversies about the scope of membership therein. This we may do, even if we do not mean to settle these debates. These debates are often highly fraught, and even sometimes heated. That is because they are taken to concern the question of which entities are, in their own right, worthy of moral consideration. It is not antecedently clear that there is only one moral status that might matter or whether, indeed, moral status might come in degrees (see, e.g., DeGrazia 2008). If we abstract from the question of which entities have moral status and why, what emerges from much of this discussion is that it is common to suppose that having moral status is a matter of being the sort of being to whom one can have an obligation or the sort of being whom one can wrong (e.g., Warren 1997, Jaworska and Tannenbaum 2013). While the set of beings with moral status sometimes is distinguished from the set of persons (e.g., Warren 1997), sometimes the term “moral person” is used to denote a being with the sort of moral status just mentioned (e.g., Kittay 2005). “Legal persons,” analogously, are those workers are pro tanto moral violations, as well as legal ones, similar to stealing from a corporation or making false accusations that slander its reputation. That being the case, it is doubtful that all moral persons are individual persons.

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entities that can wrong one another legally (Thompson 2004b, 352). The idea of wronging someone is a dyadic notion: one person wrongs another. It is to be contrasted with the monadic idea of acting wrongly. For now, using the term “person” in this moralized way, I suggest that, to a first approximation, the moral community is the open-​ended set of all individual persons who can wrong another or can be wronged by another. It is possible that this qualification pertaining to the possibility of wronging and being wronged is otiose because already implicit in the idea of a person: I will discuss this possibility further later in this chapter. However that may be, this qualification, importantly, brings out the structure of the moral community. The ideas of wronging someone and of being wronged by someone presuppose a relational sort of normativity. Specifically, they involve the closely related ideas that one person owes a duty to another and that one person has a right against the other (cf. Kamm 2002, 477).3 These dyadic moral concepts provide the kind of structural connection that can give shape to the moral community.4 More fundamentally, the structure constituted by the dyadic moral relationships presupposed by the idea of wronging someone provide sufficient structure to license talk of a moral community, as opposed to a mere set of persons. It might be denied that the idea of wronging someone is a dyadic moral concept. Perhaps it can be supported solely on the basis of monadic moral concepts. Here’s one suggestion about how this might go:5 If, in regard to B, A has acted wrongly by φing B, and the wrongness of this action is explained by the fact that A had a duty not to φ B, then A has wronged B.6 Call this proposal the “monadic reduction of wronging.” This suggestion seems persuasive in a case such as the following: Suppose that Alex fails to compensate Blair for an injury and that, in doing so, Alex has acted wrongly. If the wrongness of failing to compensate Blair is explained (in the right way) by the fact that Alex had a duty to

3. I will analyze the nature of the close relationship, or correlativity, between these two ideas in the next chapter. 4. The terminology used for these dyadic moral concepts is quite varied: some say “directed duties” (Sreenivasan 2010, 467). In Thomson (1990), one finds the vivid term “two-​hatted.” Since, as I indicate at the close of this section and in §§2.4, 3.1, and 4.5. I do not assume that all members of the moral community are human, I avoid this term. I also allow that people might have dyadic duties to themselves (see §3.5, n. 39). Thompson (2004b) uses the term “bipolar,” which he contrasts with “monadic.” I pick up on the latter, while steering away from “bipolar,” because I do not find Thompson’s metaphor of “an arc of normative current as passing between the agent-​poles” to be useful (2004b, 335). 5. I owe this objection to Elizabeth Harman. 6. I follow the philosophical convention of using φ to stand for any verb of action.

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compensate Blair, in particular, then we would surely be comfortable saying that Alex wronged Blair.7 While this response is appropriate to the compensation case, that is because we think of compensation as specially owed to definite individuals, not because of the suggested monadic pattern of explanation. Suppose that I have a duty not to destroy a beautiful set of stalactites—​a duty that explains why I act wrongly when I destroy them. If so, then, in the proposed monadic reduction, we should say that I have wronged the stalactites.8 This claim is not linguistically comfortable. Of course, stalactites are not persons; but consider the following case, in which a person is the “patient” of a duty (is in the direct-​object position of the verbal construction, “to φ B”): In response to Casey’s having been gratuitously insulted by Bailey, Casey asks Audie to embarrass Bailey at a party by recounting the story of the insult, and Audie promises to do so. Audie subsequently acts wrongly by failing to tell the story; and Audie’s having a duty to embarrass Bailey by telling the story explains why this failure was wrongful. Yet Bailey was certainly not wronged by Audie’s omission. Returning to the original case of Alex and Blair, what if we simplify it by setting aside the element of compensation so that it becomes a simple case of injury, like the stalactite case? Then we would want to know more before we decide whether Alex has wronged Blair. One important thing we will want to know is whether, as these humanoid names suggest, Alex and Blair are persons.9 As I have already indicated, I understand the term “person” as referring to an entity that can have duties directed to specific others, rights or claims against specific others, and liberties vis-​à-​vis specific others:  accordingly, such an entity can be wronged. In so interpreting the term, I  follow Michael Thompson (2004b, 351–​355), who illuminatingly contrasts persons, understood as beings who enter into such dyadic relations, with agents, who can be understood monadically. An agent acts on reasons, perhaps forming and pursuing a conception of the good, and perhaps even doing so rationally. While all persons are agents, not all agents are moral persons. An example of an agent that is not a person would be an ad hoc group of acquaintances who have settled on going on a hike.10 The group can decide on a route to take based on an

7. As I will be saying, below, Blair is the patient of Alex’s duty of compensation. 8. The example is from Kant (1996, 192: Ak. 6:443). 9. Again, as I will make explicit later in this discussion, I am not assuming that all persons are humans. I am using mainly names with English-​language origins only because of their relative familiarity to readers of English. 10. I am grateful to Marcus Hedahl for help with the example.

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assessment of the pros and cons of the alternatives, and can even organize who will buy what provisions. However, it cannot undertake obligations as a group, nor has it any rights against specific others. It has neither any legal status nor (absent any further special circumstances) any moral status. Since the concept of a person is of an entity that enters into dyadic normative relations, if the ultimate grounds of duties are person-​affecting ones, the attempted monadic reduction of wronging is blocked.11 Accordingly, we may continue to take the intuitive importance of the idea of wronging someone as evidence of the importance of dyadic concepts in our thinking about morality. To understand persons as entities that enter into dyadic normative relations is to understand them as beings that can wrong or can be wronged. If we take this as given, then we can indeed recognize a redundancy in my initial characterization of the moral community. I suggested that, at a first approximation, the moral community is the open-​ended set of all individual persons who can wrong another or be wronged by another. We could now simplify this to say that the moral community is the open-​ended set of all individual persons. As we shall see, however, the additional clause will recur in a slightly different form. For my purposes here, what matters are the general principles of the moral community’s structural anatomy, not a full accounting of its elements. I  will not be trying to get a handle on the idea of the moral community by trying to figure out which entities are persons or which entities can wrong someone or be wronged by someone. Accordingly, I do not defend any specific criterion of personhood or membership in the moral community. To do that would divert our attention and court needless opposition. As I will note in the following chapter, the account I develop of the moral community’s structure allows a broad range of views as to what beings might count as persons. Instead of trying to settle on a definite view about this point, I will focus on the nature of the moral relationships that constitute the principal structuring elements of the moral community, without attempting to settle exactly what role an entity must play in those relationships in order to count as a (full) member of the moral community. The two main possibilities here are those implicit in my disjunctive gloss of the idea of the moral community: the roles of a potential wronger and of someone who can been wronged. In relation to the kind of account of moral community I am developing here, the central and most controversial question about the scope of its membership

11. In light of this way of distinguishing persons from agents, we should allow an interpretation of affecting persons that includes the operation of moral powers that alter the person’s rights and duties. Moral powers—​roughly, the ability to alter the rights or duties of another person—​ will be important to the argument of the following chapter.

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presumably would concern whether its members all must be capable of wronging others, or whether it suffices that they are capable of being wronged. Since I cannot try to settle these much-​debated issues here, I will speak about the broader group of entities either capable of being wronged or capable of wronging as members of the moral community, while recognizing that not all of them are competent to enter into all the moral roles that I will describe.12 The closely related ideas of dyadic duties and dyadic  rights form the basic building blocks—​the bone cells, if you will—​of the moral community. We have not yet gotten to how these are shaped into distinct, joined bones. To do that, I first need to draw on the idea of a moral norm, which will help us better to discern the skeletal arrangement of the moral community.

2.2 Kant on the Ethical Community To make this link between the idea of a moral norm and that of the moral community, it will be helpful to take a brief look at Immanuel Kant’s idea of an ethical community. As we have seen, Kant’s best-​known conception of moral community is the notional, ideal one of the kingdom of ends. There is no actual kingdom of ends. Yet Kant also put forward a much less well known account of a living, actual ethical community—​one in which norms play an important role. Surprisingly, his conception of ethical community has a lot in common with a Humean, or more generally consequentialist, emphasis on the usefulness of coordinating social conventions. Yes it is, above all, Kant’s insistence that the ethical community must embrace all persons that makes this idea interesting. While he allows that legitimate political communities might be geographically and demographically limited, the idea of “the ethical community as such” is a regulative idea that includes “all finite rational beings” (1998c, 107: Ak. 6:96). Kant’s argument that individuals have a duty to exit the juridical state of nature and enter political societies so that they can render property rights determinate—​differently in each nation—​is well known.13 His account of the ethical state of nature and its contrary, the ethical community, remains largely neglected.14 His account of the ethical community does not contemplate there being different ethical norms in different places, though it does include the latitude or leeway for alternative

12. I am grateful to Hailey Huget for discussion of these issues about moral status. 13. This has not been continuously so. There has been some steady recognition of this aspect of Kant’s philosophy, but the pioneering work of Ripstein (2009) has helped give it recent salience. 14. An exception is Ebels-​Duggan (2009), which brought this passage to my attention.

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possible ways of specifying ethical norms that is a distinguishing mark of Kant’s understanding of ethics (Kant 1996, 153: Ak. 6:390). In short, it is worth looking at Kant’s conception of the ethical community because it is conceived as a community of all persons who unite on a system of ethical norms that enable them to coordinate their actions. Kant introduces the idea of the ethical community via the following parallel (1998c, 106: Ak. 6:95): A juridico-​civil (political) state is the relation of human beings to each other inasmuch as they stand jointly under public juridical laws (which are all coercive laws). An ethico-​civil state is one in which they are united under laws without being coerced, i.e., under laws of virtue alone. In both the juridical and the ethical states of nature, while “each individual prescribes the law to himself,” presumably in some effort to conform to the moral law, there is a lack of unity. In both cases, this lack of unity consists of “each individual [being] his own judge,” as well as in there being “no effective public authority with the power to determine legitimately, according to laws, what is in given cases the duty of each individual, and to bring about the universal execution of those laws” (1998c, 107: Ak. 6:95). Thus, Kant is apparently saying that in the ethical case as in the juridical case there is a need for a legitimate, common way to coordinate the determinate working out of morality’s content, backed by the appropriate sanctions (coercive ones in the political case, noncoercive ones in the ethical case). Kant holds that the ethical state of nature, much like the juridical state of nature, leaves individuals prone to corruption and “dissensions from the common goal of goodness, as though they were instruments of evil” (1998c, 108: Ak. 6:97). Although his way of putting this carries overtones of the doctrine of original sin, it could also easily be restated in terms of the decidedly secular language of game theory. A lack of ethical unity poses severe coordination problems and, despite each individual’s isolated attempt to prescribe universal law, also gives rise to assurance problems, insofar as people are at all tempted to diverge from ethical behavior.15 Such collective-​action problems can lead people rationally to behave “as though they were instruments of evil.” Accordingly, as Kant puts it in a section heading, “the human being ought to leave the ethical state of nature in order to become a member of an ethical community” (1998c, 108: Ak. 6:96).

15. On the assurance problem that arises in Kant’s ethical state of nature, see Ebels-​Duggan (2009, 15) and Weithman (2010).

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While it is commonplace for Humeans and consequentialists to emphasize the benefits of coordination, it is striking that, despite Kant’s insistence on the central importance of the categorical imperative—​the one Moral Law—​he also highlights the moral importance of coordination. Because Kant understands that ethics (unlike justice) importantly makes room for latitude or leeway—​and so, in effect, for agent-​centered prerogative—​ethical coordination is especially important. I will first bring this out via a toy example that makes reference to Kant’s “contradiction-​in the-​will” test, which is central to his account of ethical duties. Then, with an eye toward the next chapter, I will describe its importance in relation to seeing to it that, despite the latitude we individually enjoy, we collectively accomplish our ethically urgent tasks. Kant’s contradiction-​in-​the-​will test brings the categorical imperative’s “universal law” formulation to bear on an agent’s proposed ends. On this test, in its application to what Kant calls “virtue,” the ethical aspect of morality, he seems to have in mind that one should consider what have been called “maxims of neglect” or “maxims of indifference”—​statements of proposed intention that indicate that one proposes to do nothing whatsoever for the sake of the end in question.16 The most important example is “to do nothing whatsoever to help others.” Kant (1998b, 33: Ak. 4:423) argues that this maxim of neglect, if universalized, yields a contradiction.17 This indicates, according to standard readings of Kant’s formula of universal law, that it is impermissible to act on this maxim, thus establishing beneficence as a wide duty—​one with considerable latitude. Without trying to address all the many vexing problems that arise in attempting to interpret and apply this test, we can nonetheless look at how it leaves open some important ethical coordination problems. Suppose that the parents of young children are seeking to work out a fair way to divide the burden of feeding their children, an ethically important responsibility. Suppose further that they agree that cooking and grocery shopping are equally burdensome activities, and that each parent, as a reasonable and rational individual agent seeking to do their fair share, considers acting on the maxim, “To shop for ingredients that would allow the family to eat, but not to do the cooking necessary to make them edible.” Arguably, a literalistic application of the

16. Onora Nell (now O’Neill) characterized the relevant maxims as maxims of neglect (1975, 90). John Rawls called these “maxims of indifference” (2000, 172). 17.  While the most common interpretation of Kant’s claim that universalizing this maxim generates a contradiction appeals to how the agent’s purposes would be thwarted were he never helped, see the more elegant reconstruction made possible by the “practical knowledge” reading given in Engstrom (2009, 211).

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contradiction-​in-​the-​will test would fail this maxim, and likewise fail a maxim of cooking but not shopping, thus implying that it is wrong for individuals to exercise their prerogative to divide labor between them. This being such an absurd result, however, commentators (e.g., Nell 1975, 77) have suggested that in such cases, either mode of specializing should be declared permissible. This interpretive move avoids the absurdity but fails to require our parents to coordinate in the important task of getting the children fed. A more serious case of ethical coordination concerns how we, collectively, organize our efforts at helping those in need. Principles of justice may imply that governments ought to shoulder the burden of this effort to a considerable extent; but even so, it seems likely that significant ethical responsibilities will fall to individuals, such as lending a hand in response to natural disasters and human violence. Voluntary associations of many kinds help us address these needs; but again, without some ethical principles that help coordinate our action, some important needs may go morally unaddressed. This does not mean that the ethical community will have to impose uniform or simplistic solutions, such as requiring, in two-​parent families, that one do all the cooking and the other do all the grocery shopping, or that all persons steer their charitable giving to the most cost-​effective life-​saving efforts. It does mean, though, that it is important for the ethical community to work out how to reasonably assure that urgent tasks such as rescuing the victims of disasters can be well handled. Coordination problems are not the only type of collective-​action problems that the ethical community must address. Another type involves the need for assurance, which arises in many kinds of joint undertaking. Discussing the unity of a marriage in a way informed by Kant’s idea of ethical community, Kyla Ebels-​Duggan points out that it involves two people “working out jointly what [their] ends are and how to share them” (2009, 15). This effort by itself, she notes, does not solve the assurance problem. Trust must arise for that to happen. One way to build trust is via a continuous process of mutual consultation that encourages both parties to buy into the joint endeavor. One parent may take the time to buy the groceries, trusting that the other will cook a meal from them, while the other plans to cook, counting on the other to buy the ingredients. In no case is this joining of commitments or this mutual trust complete—​nor, if Kant is correct, should it be (see Kant 1996, 215:  Ak. 6:469–​ 470). There are boundaries to navigate and lines to draw. For instance, the value of autonomy supports the idea that the parties each need some degree of privacy and personal space; and fairness or justice requires that the joint proj­ect not be wholly one-​sided, ruling out casting one of the partners as wholly subservient to the other.

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Kant’s idea of the ethical community suggests that which concrete duties arise in cases where ethical coordination or ethical assurance is crucial will depend upon what the ethical community has settled upon by way of determining our ethical duties. As my examples suggest, this will be to some extent a matter of how certain contingent social practices—​such as that of children being raised by their parents or those setting expectations about parental responsibilities—​shape the ethical norms that take account of them. This appeal to Kant’s idea of the ethical community, of course, is merely suggestive. It is, however, striking to find that a philosopher so well known for having isolated a single, a priori moral law nonetheless saw the need for the fuller social determination of morality—​not only on the political side, but also on the ethical side, in community and in the contingent course of history.

2.3 Norms to Structure the Moral Community Intuitively, it seems likely that the “laws” or norms that accomplish the fuller social determination of morality will often involve dyadic duties and their correlative rights and will hence be just the kind of norms needed to give structure to the moral community (as I  will now switch back to calling it, somewhat softening, in the spirit of the last chapter, Kant’s sharp distinction between justice and ethics). For instance, parents have obligations to their children to care for them, both individually and—​conditionally on the existence of certain background practices—​jointly as well. There seems to be a deep connection between the division of labor and the articulation of directed duties. Division of labor between those gathering food and those cooking it has presumably marked human societies since the taming of fire. Trade also arose early, with some offering grain but not taking it, and others offering meat but not taking it. As even these very basic practices began to take hold, there arose a pragmatic need to settle norms with regard to them. Once grain and meat began to be regularly traded, those involved began to need regular systems of measuring and weighing these goods. Incidentally to these systems arose the possibility of fraud. Aquinas quotes the book of Deuteronomy on the topic:  “Thou shalt not have divers weights in thy bag, a greater and a less: neither shall there be in thy house a greater bushel and a less . . . . For the Lord . . . abhorreth him that doth these things, and He hateth all injustice.”18 It is

18.  Deuteronomy xxx.13–​14, 16, as quoted in Aquinas (1948, Vol. III, p.  1509:  IIa IIae, Q. 77, a. 2).

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presumably for similar reasons that Confucius praised the Zhou dynasty’s rules for standardizing weights (Confucius 2000, 20.1, 81). These duties of sellers toward buyers, which got taken up in many legal systems, are indeed duties of justice rather than ethical duties; but here, my point is the more general one that a division of labor and responsibility lies in the background of many moral norms. As an ethical case, we may consider the practice of gift-​giving.19 This practice was widespread in the ancient world and generally came coupled with an obligation to reciprocate.20 In this context, the division of labor is often a rolling one. On some occasions—​when hosting a festive occasion or building a home, for example—​one is a gift recipient, and on others, one is a gift giver. Obligations of graciousness toward the giver attend the former role, giving way to dyadic obligations of reciprocation or gratitude. When one is reciprocating, dyadic norms of appropriateness apply.21 Once the division of labor and responsibility gives rise to distinct roles—​or to offices, in the broad sense illustrated by Cicero’s De Oficiis, which does not limit them to roles in formalized institutions, moral and ethical norms come to be attached to them. By helping to settle responsibilities regarding childcare, methods for assuring the integrity of weighing traded goods, and expectations regarding the giving of gifts, these norms help coordinate people’s efforts to act rightly. They can also help provide assurance. Obligations of gratitude can help assure gift-​givers that their efforts will not go unreciprocated. In marriages and close friendships, moral obligations of loyalty and solidarity can help give partners and friends the confidence they need to invest themselves in their joint commitments. When governing or guiding interactions between caregiving parents and their children, buyers and sellers, gift-​givers and gift-​recipients, spouses, or friends, these norms are understandably apt to be dyadic in form. If dyadic moral duties and the correlative rights are the structuring material of the moral community, as I suggested in §2.1, the general, dyadic moral norms that pertain to these fundamental aspects of the division of labor and responsibility start to mold this material into distinctively shaped bones. In them, one can begin to see the skeleton of the moral community.

19. For a contemporary analysis of the morality of gift-​giving, see Herman (2012), and further in her book in progress. 20.  The classic work is Mauss (1954), which concentrated on North American and Pacific cultures. On ancient Egypt, see Janssen (1982). 21. See Herman, work in progress, on these norms of appropriate reciprocation.

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2.4 The Unity of the Universal Moral Community: Thompson’s Challenge So far, this chapter has suggested that we understand the moral community as consisting of the open-​ended set of all individual persons (beings who can wrong or be wronged by another), structured in an elementary way in terms of dyadic duties and rights and further articulated by moral norms that reflect a division of morally significant roles and responsibilities. Before we can fully see how these concepts can support a viable conception of the moral community, we need to answer two sets of questions. First, what are dyadic duties and rights? Talk about duties to specific other people and rights against specific other people is common; but does it signify anything real?22 If so, what? Second, what can account for the universality of the moral community—​its inclusion of all individual persons who can do wrong or be wronged, as opposed, say, to all individual persons of this or that nation, culture, or society? This is not the question of which entities can do wrong or be wronged—​the disputed question of which entities are members of the moral community—​but rather the question of what might possibly unite them all in one moral community. The first of these questions, about the nature of dyadic duties and rights, I  address principally in the next chapter, on my way to explaining the first, input stage of the process of generating new moral norms. The second of these questions, about the unity of the universal moral community, I  will answer in ­chapter 4; but I will explain the question here. It has been pointedly raised by Michael Thompson (2004b), who keeps centrally in view the idea that the moral community is a set of persons who can wrong or be wronged by one another. Because he surveys three leading possible ways of answering this question and finds them all wanting, I will refer to the question as “Thompson’s challenge.” It is worth taking some time to reconstruct this challenge. To take dyadic duties and rights to be fundamental structuring elements seems to presuppose that these intrinsically relational items link persons in a way that is not explicable in terms of any pattern of monadic duties and rights. Not all philosophers believe that dyadic duties and rights are not so reducible. For 22.  For a powerful argument to the effect that no philosopher has yet given a satisfactory account of the idea of a directed duty—​a duty to someone—​see Hayward (2013). It has recently become popular to attempt to explain the usefulness of the idea of a directed duty by reference to the idea that the right-​holder gains a special “standing” to complain of nonperformance. See, e.g., Darwall (2012). Since the relevant idea of standing is itself quite elusive, perhaps an adequate rebuttal to this suggestion is to ask why such standing is not already adequately explained, and without invoking true directedness (“you had a duty to me to φ!”), by reference to being a duty’s patient (“you had a duty to φ me!”). My thanks to Jesse Tumulty for useful thoughts on the issue of standing.

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instance, they would be so reducible on Joseph Raz’s definition of rights, as revised by Thompson (2004b, 333) to read as follows: Definition: ‘X has a right [against Y]’ if and only if X can have rights, and, other things being equal, an aspect of X’s well-​being (his interest) is a sufficient reason for holding [Y]‌to be under a duty.23 Thus transformed into a statement of the Interest Theory of dyadic rights, which will be discussed further in §3.2, this definition analyzes them in terms that involve only monadic normativity—​specifically, by reference to X’s well-​being and Y’s monadic duty.24 If there is a relevant right-​holder in the picture, why do I say that the duty this definition refers to is monadic? My answer is that the appearances can easily mislead us on this point. I start with a simpler way in which this happens, before coming back to the subtler case of the interest theory. The content of duties, obligations, and rights often makes reference to other people, thus mimicking a dyadic structure. Instead of involving, say, duties to others, all they involve is what Kant (1997, 240) called duties “regarding” others. Returning to the earlier scenario, if Alex has injured Blair, then perhaps Alex has a duty to compensate Blair. If Audie has promised Casey to embarrass Bailey, then Audie has a duty to embarrass Bailey. The consequents are statements of the following form: A has a duty to φ B, where φ is some verb of action and B is some definite person in the position of a grammatical object to that verb. We might call Blair and Bailey, and anyone in the position of B, the “patient” of a duty.25 As the promise case suggests, the concept of a duty’s patient is distinct from that of a duty’s “counterparty”—​the person to whom the duty is owed, and who therefore has a corresponding claim-​right (in this case, Casey). As Thompson emphasizes, this latter notion is a structural or relational one that cannot be absorbed into the content of a duty. This relational structure does not exist in every case in which A has a duty that p and B has a right that p. For instance, it does not exist if this 23.  There, Thompson is quoting Raz (1986, 166). As Thompson points out, the second bracketed insertion replaces “some other person(s).” The first bracketed insertion, however, is simply his insertion. Although Raz elsewhere discusses dyadic moral concepts—​particularly normative powers—​there is no clear indication in the chapter where this definition appears that he takes dyadic rights to exist. 24. The quoted definition, similarly transformed, is taken to be a leading version of the Interest Theory of rights in Sreenivasan (2005, 265). 25. Although not using this terminology, Thompson (2004b, 349) distinguishes the notion of a duty’s patient from that of the person to whom a duty is directed (the counterparty of a directed duty).

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pair of facts arose because A promised C that p and D promised B that p.26 The semantic coincidence in the content of these two promises is merely contingent, bespeaking no deontic relation between A and B. Whereas the patient of a duty simply figures in the duty’s content, the person whose interests ground the attribution of a duty stands wholly external to the duty. Many potential ways of grounding duties have been proposed. Perhaps duties can be grounded in the categorical imperative or in God’s will. The source of a duty, from whence it derives, is a completely distinct idea from that of the counterparty to whom a duty is owed.27 We must not, then, confuse the person to whom a duty is owed with either the patient of a duty or the source of a duty (if that source is a person, natural or not). Now that I have insisted on this point, some readers will reasonably find themselves in doubt as to whether there are any dyadic rights or duties. This is a serious question. I  will not attempt to allay skepticism about this until the following chapter. For now, what I will have to say will, if anything, reinforce reasons for doubt by explaining the central metaphysical commitment involved in the idea of dyadic normativity, which arises from the correlativity it implies. It is common to take dyadic duties as being correlative to dyadic rights.28 This is to assume that if A has a duty to B to φ, then B has a right against A that A φ, and vice versa. The question of the correlativity of rights and duties has been much debated. Some of that debate may be set aside by admitting, straight off, that some rights are simply monadic, as are some duties.29 Indeed, this is a fact I  will be asserting. Hence, about correlativity, the claim I  would defend is the qualified one, that dyadic rights have dyadic duties correlative with them and vice versa. They are “the mutually constituting sides of a single relationship” (Kramer 1998, 38). Because “dyadic right” and “dyadic duty” are technical terms, their correlativity might be taken to be a trivial, analytic upshot of stipulative definition. If this were all there was to it, there would be no interest in the correlativity. More 26.  I  am grateful to John Broome for raising this issue and to Wlødek Rabinowicz for the example. 27.  Hayward (2013, 271–​272) forcefully argues for distinguishing the source of a duty (its “whence”) from the person (if any) to whom it is owed (its “whither”). 28. This tradition dates back at least to the 17th century: see Pufendorf (2009, Definitions VIII.2, XII.3). I owe this reference to Manela (2014, 7) and much insight on these issues, to that same work. 29.  A  few pages after introducing the “definition” of rights discussed here, Raz denies that rights and duties are generally correlative in this simple way (1986, 170–​171). This denial is natural and appropriate, since his unaltered definition does not even purport to be attending to dyadic rights.

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important, there would be no interest in the idea of dyadic rights and duties. It is only if the correlativity is a reflection of a distinctive type of moral relation between people that this talk of duties to specific people and rights against specific people has any interest. This distinctive type of moral relation seemingly arises from at least some of the kinds of interaction we have been considering: promising, gift-​giving, selling goods, raising children, and being loyal to one’s friends. If this were not so, we would do better to drop this complicating talk of dyadic rights and duties and talk in simpler and clearer terms about the patients of duties and the persons whose interests are important to the justification of duties and rights. But it is so; and my initial discussion in the earlier sections of this chapter of the idea of wronging someone and of the division of roles and responsibilities begins to explain how the dyadic moral relations in question come into being. A full-​dress defense and analysis of these dyadic rights and duties will have to wait until the following chapter. In this correlativity of dyadic rights and duties, we encounter the kind of metaphysical commitment implicit in the idea of the moral community as I have been developing it. It is a commitment to the existence of these dyadic moral relations between pairs of individuals. There is a kind of ontological commitment here to the existence of some single fact that grounds each such correlativity.30 Call this “ontological correlativity.” A rough-​and-​ready way to explicate this is to say that A’s duty to B to φ is ultimately the same relational fact as B’s claim that A φ, seen from the opposite direction.31 The idea of dyadic rights and duties, and more generally of moral “directedness,” as used here, will be taken to carry the implication, not merely of dyadic syntax, but also of ontological correlativity. Now, having spelled out that attributions of dyadic rights and duties presuppose an ontological correlativity of the two, I can properly state Thompson’s challenge to the idea of the moral community. The problem is not the general one of seeing some group of people as being linked by a web of dyadic normative relations. As Thompson points out, we have no trouble understanding how chess players—​or the citizens of Texas—​can be united into a kind of normative community via their participation in different systems of conventional or positive rules. Rather, the difficulty is peculiar to the moral community and arises from the moral community’s unity and universality. As I argued in §I.1, the idea of morality presupposes universality, negatively understood:  morality’s norms are insensitive to the particular identities of 30. The same holds for all dyadic normative relationships, including legal ones. 31. Somewhat more cautiously, one might say that adequate accounts of each corresponding specific moral status will necessarily trace back to the same underlying fact. I am grateful to Gideon Rosen for discussion of these ideas.

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persons. In §2.2, in examining Kant’s conception of the ethical community, we saw a positive complement to this negative idea—​namely, the idea that the moral community is the community of all persons. There is exactly one moral community, and it embraces all persons. Although this positive idea does not follow from the negative one, it gains strong support from it, since indifference to particular identities would block the kind of differentiation based on culture, place, and history that separates political communities. The fundamental equality of all moral persons, referred to previously, lends further support to this positive ideal of the unity and all-​inclusiveness of the moral community. The logic of the critique of the idea of “separate but equal” arrangements applies not only to schooling, but also the level of the moral community as a whole. The question then becomes, “How can all persons be united via one set of dyadic normative relations into a single moral community?” Thompson challenges us to come up with an adequate answer to this question. This idea of “one set of dyadic normative relations” requires elucidation—​an effort to which Thompson’s essay devotes much attention. As he argues, mere coincidence—​even perfect coincidence, or isomorphism—​in content will not suffice to make two systems of norms one. Worldwide professional boxing is governed by not one, but three different official bodies that set rules, sanction competitions, and recognize champions:  the World Boxing Association, the World Boxing Council, and the International Boxing Organization. Although the rules of these different organizations largely overlap, and although each takes account of the rankings and the titles awarded by the others, they do not coincide in their rankings or their awarding of titles. To be bound by one of them is not the same as being bound by any of the others—​a fact of which individual boxers sometimes take advantage. Even a full coincidence in content will not erase the importance of this kind of difference in the authoritative source of the norms in question. To take an example of Thompson’s, when Turkey picked up the Code of Civil Procedure from the Swiss canton of Neuchâtel and adopted it wholesale as its own, “[i]‌t is not that the territory governed by the procedural laws of Neuchâtel was extended to cover Asia Minor” (2004b, 362n.).32 Judges operating in Neuchâtel claimed no authority or jurisdiction over civil cases in Turkey, nor was the reverse true. Further, the lawmaking bodies that authoritatively established these civil codes

32. As aficionados of Thompson’s article will notice, I will be ignoring his reference-​theoretic arguments that appeal to Twin Earth thought experiments (2004b, 361–​363). Unlike Hilary Putnam’s original Twin Earth cases (Putnam 1973), Thompson’s Twin Earth cases do not suppose any difference between the two planets, leaving the importance of their distinctness unexplicated.

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were wholly distinct from each other. For these kinds of reasons, it is clear that these two codes of civil procedure, despite their isomorphism, do not amount to one normative system. These reflections suggest one further refinement to our working characterization of the idea of the moral community. A Turkish lawyer cannot, by violating her country’s rules of civil procedure, wrong anyone in Neuchâtel who is not otherwise caught up in the Turkish legal system. A corollary of the unity and universality of the moral community, however, is that, as a conceptual matter, any of its members is a person who can wrong or can be wronged by any other members. On these grounds, we should restore a version of the clause to our gloss of the idea of a moral community previously dropped as redundant, but this time with a modification intended to capture this idea: The moral community is the open-​ended set of all individual persons who can wrong or can be wronged by one another. The new qualifying phrase here, “by one another,” is intended to carry the idea that each moral person is a being that, as a conceptual matter, can be morally wronged by or that can morally wrong each other person. In the terms that I have developed here, this implies that all members of the moral community are linked by dyadic relations to a single normative structure, structured by norms. The idea of open-​endedness remains a placeholder for now, to be filled in later, in §4.3. The possibility that all individual persons might be so linked calls for some explanation or account. As Thompson rightly insists, when any two individuals are to be linked to the same normative structure or system, there must be some explanation or account of that. It cannot be a mere coincidence that the norms governing them line up in their content as if they were so linked.33 Thompson looks to three leading philosophical views as sources of potential accounts of this kind:  Hume’s account of justice as a conventional virtue, Aristotle’s appeal to human nature or the human life form, and Kant’s appeal to the nature of practical reason. He purports to find each of these three approaches unsatisfactory. I will close this chapter by explaining why we should indeed reject each of them. Given that the challenge posed is about explaining the unity of the universal moral community, it is perhaps obvious that no attempt to adapt and extend 33. At one point, Thompson seems to demand that, for two people to share a normative community, it must be a noncontingent fact (“no accident”) that their thoughts mirror each other’s (2004b, 373). This is too much to ask; and in fact, what he seems officially to mean is that “there must be a possible account of the agent’s agreement with one another, of the might-​be meeting of their minds” (374). This is the standard to which I will be holding my own attempt to answer Thompson’s challenge in ­chapter 4.

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Hume’s accounts of justice as a social convention could serve as a satisfactory way of meeting it. Social conventions are always those of this or that human society, limited in time and in space or membership. (The three different boxing organizations mentioned previously are each limited in membership, though all are international.) As reconstructed by Thompson, the idea is that practices and customs serve as their own sources of authority. “The thoughts of co-​practitioners of a single practice or custom do indeed come under a common source and a common background of interpretation, namely, the practice itself.  .  .  .” The participants in the practice are those who have been initiated into it by habituation in the course of their upbringing (Thompson 2004b, 375). Yet all known human practices and customs capable of molding the young have outsiders as well as insiders. Thompson speculates that Hume may have thought that natural sympathy would lead the insiders to treat outsiders decently. It might or might not; but either way, since the promptings of sympathy can invoke only the monadic considerations of good and ill that occupy the thoughts of mere agents, they do not support the idea of a manifold of persons. More specifically, sympathy, by itself, generates no accounting of how outsiders get incorporated into the normative community constituted by the relevant practices and customs. Thus, the Humean suggestion fails on account of its inability to incorporate outsiders—​ including many humans who intuitively seem to be moral persons. Recall, here, that mere isomorphism in the content of different sets of practices will not suffice to generate a united moral community. Thompson (2004b, 361–​ 362) dramatizes this point by means of a fanciful example of two mutually isolated tribes within the late Roman Empire: the Lombards and the Schlombards. Each operates with a set of customary laws governing commercial transactions. Further, as it happens, the content of these two sets of customary laws is identical. Imagining a moment of first contact between a Lombard and a Schlombard, Thompson supposes that it may well happen that they will each believe that they have executed a valid contract; but if they do, and if they each end up believing that they have obligated each other, this will be a “sheer accident” (2004b, 373). As we have seen, to assert the existence of correlative rights and duties between two people is to presuppose the existence of a fact that grounds these relations. The accidental isomorphism of the two sets of conventional norms cannot do this. If each practice is seen as self-​grounding in the mode of a convention, then each serves as the authoritative basis for its own interpretation. The Lombard is linked to one of these practices, the Schlombard to the other. Nothing, then, would account for both being linked to the same normative system. Thompson’s second candidate account of the unity of the universal moral community is an Aristotelian appeal to human nature, or to what he prefers to call the “human life form” (2004b, 376). Although many Aristotelians and readers of

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Aristotle take this idea to be a biological notion, Thompson (2004a) insists that it is an a priori one. He takes it that an a posteriori version of the idea of human nature would be open to the Kantian objection that it spoils the autonomy of morality (Thompson 2004b, 377). Thompson raises two difficulties with the Aristotelian answer to his challenge, thus understood. First, this approach faces an epistemological difficulty about how it can have sufficient transparency to unite persons in one community. If the representation of the human life form is, at bottom, a priori, how can individual humans gain an appropriate perspective on the basis of which to determine which other individuals share this life form?34 The second worry is that this focus on the human species leaves out some moral persons. It is this second worry that seems fatal for the Aristotelian approach to accounting for the unity of the universal moral community, whether in its empirical, biological version or its a priori version. Thompson (2004b, 378–​379) notes that we do not have firm intuitions as to whether intelligent Martians are moral persons. Many do have firm intuitions, however, about various nonhuman animals, such as the great apes or dolphins, being moral persons (see, e.g., Beauchamp and Frey 2011). The idea of the human life form is the speciesist idea par excellence. Here, I have steered away from attempting to settle such questions as whether great apes or dolphins are moral persons. I have mentioned that these are controversial questions; but the matter goes deeper than that. There are also serious arguments for taking them to be moral persons. That being so, it would be a defective conception of the moral community that conceptually foreclosed this possibility. In addition, it is unclear how an Aristotelian approach to accounting for the unity of the universal moral community could possibly make sense of the dyadic moral relations that bind that community together.35 Suppose, with Thompson, that the human life form includes the idea of justice. That is, suppose that individuals that act unjustly are defective qua human beings. This is a nonrelational fact about each of them. As such, while it might be appealed to in order to show that each of these individuals has acted wrongly, it cannot be used to show that any of them has wronged anyone.

34. In the answer to the challenge that I will defend in ­chapter 4, while the basis of what unites people into one moral community cannot be fully transparent to everyone, it is fundamentally not a representational basis (not one that relies on any shared conception of human nature or anything else), but a transactional one. 35.  Although Thompson mentions in passing that an aspect of the epistemological worry involves arriving at dyadic forms of thought (2004b, 378), he does not note the specific difficulty explained in the text.

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The Kantian approach to accounting for the unity of the universal moral community that Thompson considers avoids this last-​mentioned problem by fiat. This Kantian approach appeals to the idea that rational agency’s a priori form includes directed normativity.36 About this possibility, Thompson fairly complains that this move depends on a “strange and wonderful metaphysics of reason” (2004b, 384). Yet as I have indicated, the idea of the moral community is not innocent of metaphysical commitments. It may further be that all metaphysics is strange and wonderful, in the suspect sense. But there is another problem. Based on the discussion of Kant’s conception of the ethical community, we can say more. As we saw in §2.2, its a priori counterpart, the kingdom of ends, does not well support dyadic moral relations. Each individual is to act as if he or she were legislating universal law. In the kingdom of ends, everyone acts compossibly in this way. Yet as we saw, to act in a way such that everyone could act may fall seriously short of acting in a coordinated way. The absence of joint agency we observed in the kingdom of ends is symptomatic of an absence of dyadic moral relations there.37 While Kant does think that dyadic moral relations are supported by the categorical imperative, he argues that it requires contingent efforts at coordination to realize this possibility. The various political societies give juridical rights and duties determinate reality, and the ethical community gives ethical rights and duties determinate reality. If Kant is right, then the a priori moral law, which expresses the idea of pure practical reason, does not suffice to support the idea of the moral community in the sense that we have here given to that idea. Of the three potential accounts that Thompson distinguishes, my own account of the moral community is perhaps closest to Kant’s, and will similarly combine aspects of the juridical with the ethical and see the moral community as serving to render dyadic rights and duties determinate. I will not, however, rest my eggs in the categorical imperative’s basket. Instead, in the spirit of constructive ethical pragmatism, but without presupposing the truth of that view, I will suppose that our moral thinking and moral justifications begin in medias res with

36. Something like this thought may seem familiar from Darwall (2006), and in particular from the way in which he there connects the idea of the second-​person standpoint with Kant’s idea of the kingdom of ends. Building on this work, Darwall (2012) gives an account of directed duties in terms of the “standing to demand” certain performances. If demanding were a moral power—​an ability to alter other’s rights and obligations—​then it might succeed. I am not convinced, however, that demanding is a moral power. 37. By “dyadic moral relations,” I continue to mean ones involving correlative rights and duties (or other correlative Hohfeldian incidents, as will be laid out in the following chapter). See note 22 on the conceptual distance between these and the forms of “second-​personal address” that Darwall (2006, 306–​309) links to Kant’s idea of the kingdom of ends.

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a plurality of norms to which we are committed and a plurality of fundamental considerations we take seriously. In this chapter, I have developed an understanding of the idea of the moral community as being structured and united by dyadic moral relations—​by obligations owed to specific other persons and rights against specific other persons. I have defended the view that the moral community is the open-​ended set of all individual persons who can wrong or be wronged by one another. In so doing, however, I  have taken the intuitively familiar ideas of dyadic rights and duties for granted. If dyadic rights and duties do not exist, then the moral community, so described, does not exist. We need an account of dyadic duties to give us confidence that the moral community does, after all, exist. The account developed in the following chapter aims to lay the grounds for such confidence and, at the same time, to explain the first stage of the three-​stage account of moral innovation. That account will then put us in a position, in c­ hapter 4, to explain the as-​ yet-​unthematized idea that the moral community is open-​ended, and thereby put us in a position to answer Thompson’s challenge about what can account for the unity of the universal moral community.

3

A U T H O R I TAT I V E   I N P U T

Dyadic Duties and Rights

The first stage of the three-​stage account of how new moral norms can arise, as outlined in §I.4, involves pairs (dyads) of individuals which, by exercising authorized moral discretion, put new candidate moral norms on the table. These result from efforts—​usually joint efforts—​ to work out together how, specifically, one of them should act so as to fulfill a duty that he or she owes to the other. As the last chapter argued, the moral community is knit together and structurally differentiated on the basis of dyadic, ontologically correlative rights and duties that tend to reflect a social division of moral responsibilities. Now, in defending the first stage, we can put this conception of the moral community to work. Before leaning philosophical weight on this conception of the moral community, however, I  need to establish that dyadic (ontologically correlative) moral rights and duties exist. While it is fairly widely accepted, as an intuitive matter, that they do, we have seen that this intuitive view often rests on conflating holders of dyadic rights with others, such as those who are the patient of a duty (the one regarding whom the duty is held) or the source of a duty (the one who generated it). Noticing these common conflations reasonably leads to doubting the need to invoke dyadic duties, with their metaphysical commitment to moral relations that would support the ontological correlativity of dyadic rights and duties.

3.1 The Specificatory Theory of Dyadic Moral Rights and Duties In this chapter, I set out and defend a theory of dyadic moral rights and duties that has a dual purpose. First, it counters the just-​mentioned grounds for skepticism about the existence of dyadic rights and duties;

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second, it establishes the basis for the first stage of the three-​stage account. As I will explain, the theory works from a basis that assumes the existence of monadic rights and duties.1 This theory is: The Specificatory Theory of dyadic moral rights and duties: For individuals A and B, A has a moral duty to B to φ and, equivalently, B has a moral right against A that A φ, just in case (i) B has a monadic moral right that implies in the circumstances that A has a moral duty to φ and (ii) on account of (i), A has a moral power to specify A’s moral duty that A φ. It is the power to specify, mentioned in clause (ii), that links the two parties as counterparties. This theory should, and probably will, strike you as getting things backward. Shouldn’t right-​holders be the ones who have powers to specify their rights (Hedahl 2013b)? This response may be partly motivated by a misunderstanding. Let me emphasize right off the bat that having the moral power to specify one’s duty (or one’s counterparty’s right) is a very different thing from having power over that person in an ordinary sense.2 As will become clear later in the chapter, duty-​holders’ moral powers to specify their duties are always highly delimited. Duty-​holders are not invited by this theory to let themselves off the hook. A more positive response to this incredulity about the theory’s one-​sided form, however, arises from the importance of being open-​ended about which entities are moral persons. As I indicated in §2.4, I am leaving unsettled the question of which entities are persons. Perhaps among them are members of nonhuman species. If so, it seems highly likely that among the set of persons are some who are not competent to engage in the effort to specify rights and duties. They are not “morally competent individuals,” as I will put it. Still, it may well be that some morally competent individuals have duties that they owe to one or another of the individuals who are not morally competent. Perhaps each of us morally competent humans owe duties to dogs or to dolphins—​animals that, we may suppose, are not capable of specifying rights and duties. By avoiding implying that directed duties exist only when the right-​holders have the power to specify, the Specificatory Theory leaves open this possibility.

1.  By “monadic,” I  mean “nondyadic.” As I  explained in §2.4, I  understand the dyadic as involving ontological correlativity—​for example, between one person’s duty and another person’s right. 2. I touched on the idea of a moral power in §2.1 and will explain it further in §3.2.

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What about the opposite possibility:  that only the right-​holder have the power to specify the right/​duty in question? My answer to this question comes in two steps. The first observation is that where both counterparties are morally competent individuals, there are important and general (though defeasible) substantive reasons (to be described in §3.6) why, if it is possible and apt, both should have a power to specify the right/​duty that binds them together. We may speak of this as the paradigm case of dyadic moral rights and duties between two morally competent individuals: For morally competent individuals A and B, A has a moral duty to B to φ and, equivalently, B has a moral right against A that A φ, if (i) B has a monadic moral right that implies in the circumstances that A has a moral duty to φ and (ii) on account of (i), A has a moral power to specify A’s moral duty that A φ and B has a moral power to specify B’s moral right that A φ. Sometimes, indeed, we may hope that A and B, if both morally competent, exercise these powers by working out together some of the specifics about how A should fulfill that duty.3 Suppose, however, that A’s duty is to stop bothering (or stalking) B. In that case, it would be perverse to hope that B gets together with A to work out the content of this duty.4 So the desirability of the symmetrical paradigm case is qualified. Its qualified desirability can be recognized compatibly with taking the Specificatory Theory as giving the best account of dyadic moral duties and rights. But what if the duty-​holder is not morally competent? Where the duty-​holder lacks the moral competence to specify the duty, it is seriously doubtful that there exists a directed duty: this is my second observation. The duty-​holder’s action needs to be steered by the duty. If the duty-​holder is not competent to specify the duty, it is hard to imagine that the duty-​holder is competent to fulfill it. We may owe duties to nonhuman animals that are not competent at specifying rights or duties because, as right-​holders, they may be wholly passive. Nonhuman animals that are not competent at specifying rights or duties, however, presumably do not have duties to us because they are not capable of acting from the idea of duty. Hence, the one-​sidedness of the Specificatory

3. Going forward, I will often omit the qualifier “moral,” since that is generally the only type of right or duty under discussion here. 4. I am grateful to Leif Wenar for this example.

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Theory results from leaving open, in the only realistic way, the possible extension of the theory to noncompetent agents. The Specificatory Theory is, at least roughly, a competitor to other going theories of dyadic rights and duties, such as the Interest Theory encountered in §2.4 and its traditional competitor, the Will Theory, as well as some appealing recent entries. Perhaps only roughly a competitor because, just as each traditional theory takes itself to have a distinctive theoretical aim, so too does the Specificatory Theory have an aim of its own (namely, to make sense of the idea of the moral community). This task gives it some depth, as well as an attendant need to rebut skepticism about whether directed duties exist, but also some narrowness: it does not undertake to explain any dyadic rights and duties apart from moral ones. Even so, part of my task here is a comparative one: to show not only that the Specificatory Theory accounts for dyadic moral rights and duties, but also to argue, albeit briefly, that it does so better than its leading rivals. Because this chapter has this twofold task of accounting for dyadic moral rights and duties and establishing the basis of the input stage, its exposition is unavoidably somewhat complex. I  will begin with a brief review of the main difficulties facing the leading theories of dyadic rights and duties. I then turn to a more detailed examination of the idea broached in §2.3—​viz., that dyadic rights and duties reflect a division of moral responsibility embodied in social practices or social institutions. This discussion will take us to a false summit—​an idea that, while not yet the idea of a dyadic right or duty, is an important way station along the path toward that—​namely, the idea of a right being specifically addressed to people who bear the responsibility for seeing to it that the right is respected or fulfilled. In arriving at this way station, I will be building on work by Henry Shue and Thomas Pogge. While Shue’s and Pogge’s arguments will not get us all the way to the idea of directed rights and duties, they provide conceptually necessary background to a proper account thereof. In addition, they help explain the connection between dyadic rights and duties, on the one hand, and a socially embodied division of moral responsibility, on the other hand. Since their arguments are focused on human rights, which are not widely thought of as being dyadic, I next turn to showing how the account of the social background of dyadic rights that I develop by drawing on Shue and Pogge can be generalized to the sorts of private moral rights that are thought of as paradigmatic cases of dyadic moral rights, taking the examples of children’s rights against their parents, promisees’ rights against promisors, and privacy rights against various potential intruders, as well as certain rights of the kind protected by criminal law. Finally, appealing to this now-​generalized account of the social background of dyadic moral rights and duties, I will argue for the existence of the moral powers

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Opposites: A has a Claim against B

if and only if

A lacks a No-claim against B

A has a Privilege vis-a-vis B

if and only if

A lacks a duty to B

A has a Power over B

if and only if

A lacks a disability vis-à-vis B

A has an Immunity against B

if and only if

A lacks a Liability to B

A has a Claim against B

if and only if

B has a Duty to A

A has a Privilege vis-à-vis B

if and only if

B has a No-claim vis-à-vis A

A has a Power over B

if and only if

B has a Liability to A

A has an Immunity against B

if and only if

B has a Disability vis-à-vis A

Correlatives:

Figure  3.1   Hohfeldian Opposites and Correlatives.

posited by the Specificatory Theory and show how it provides a basis for the input stage.

3.2 Rival Theories of Dyadic Rights and Duties? Because the leading theories of rights often seem to be talking past one another, there is probably no nontendentious way to state what those theories are about (Hayward 2013). My own focus is somewhat distinctive, although hardly unique, in concentrating our attention on dyadic rights and their ontologically correlative dyadic duties.5 Here, the focus is motivated by the claim, developed in the last chapter, that these dyadic rights and duties structure the moral community. It further sets the task for a theory of dyadic rights (namely, that of accounting for the ontological correlativity they presuppose). This being the central task shouldered by my theory of dyadic moral rights, I cannot imitate the otherwise perspicuous exposition of the idea of rights offered by Leif Wenar; however, before I explain why I cannot, I will draw on it to introduce some of the fundamental elements involved. Wenar (2005) distinguishes the analysis of the “form” of rights from the analysis of the “function” of rights. The form of rights, he suggests, is given by the table of opposites and correlatives set out a century ago by Wesley Newcomb Hohfeld (1978). An updated version is given in Figure 3.1, in which each item is to be understood as referring to a specific

5. As indicated in the last chapter, my focus on dyadic rights and duties has been influenced considerably by Thompson (2004b).

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pair of people, A and B, and implicitly filled out by reference to a given action (“that p”).6 The eight types of item in these two tables have come to be known as “Hohfeldian incidents.” As Hohfeld had argued with respect to the law, many common rights often amount to various combinations of claims, privileges (or permissions), powers, and immunities. Here, in focusing on correlative, dyadic rights and duties, I have been limiting my attention to the first of the listed correlative pairs. Those influenced by Hohfeld (e.g., Feinberg 1970) often call dyadic rights—​rights correlative to duties—​“claim-​rights.” Once this concept of a claim-​ right is available, not only duties, but also no-​claims and privileges, can be defined on their basis by means of correlativity and opposition. The third and fourth pairs of Hohfeldian correlative incidents listed in Figure  3.1 are higher-​ order incidents, involving alteration of other moral incidents. They are best understood via the notion of a power—​which, here, since my attention is limited to morality and does not address the law except insofar as it is an expression of morality, I will call a “moral power.” A moral power, as conceptualized by Hohfeld, is, roughly, an ability, by means of one’s intentional actions, to alter someone’s Hohfeldian incidents, including that person’s rights, duties, or privileges. Somewhat more precisely, a “moral power” is an ability to do this in a way that is not simply derivative from a moral norm (other than an empowering norm) conjoined with one’s ability to alter a situation in a way that the norm makes relevant (Hohfeld 1978).7 Having appealed to the Hohfeldian tables to explain the “form” of rights, Wenar then casts the traditional rival “theories of rights”—​the Will Theory and the Interest Theory—​as analyzing the “function” of rights. The contribution of these functional accounts, according to Wenar, is to pick out which Hohfeldian incidents count as rights. The Interest Theory, as described by Wenar (2005, 240), “holds that the single function of rights is to further their holders’ interests. The Will Theory, as described by Wenar (2005, 238), “asserts that the single function of a right is to give the rightholder [a measure of control] over the duty

6. On interpreting opposition in terms, in effect, of exclusive disjunction, see Biasetti (2015). Treating the correlativities as involving biconditionals is supported by taking them to be ontological correlativities (cf. Thomson 1990, 41). 7. Changing factual or natural circumstances can alter rights, duties, and privileges in a straightforwardly derivative way (one that works with what is internal to the deontic operator). Intentional actions, however, can give rise to alterations not derivable from statable principles (or not without an existential quantification external to the deontic operator, such as “someone has exercised his moral power in such-​and-​such a way”). I am grateful to Kieran Setiya having suggested this distinction in modes of derivation, which I will discuss further in §5.4.

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of another.” In the last chapter, we saw Raz’s formulation of the Interest Theory, to which we will return momentarily. This way of framing the Will Theory and the Interest Theory doubly sets them up for failure. First, Wenar well argues that the functions of rights vary more than this (2005, 243–​251). Second, at least given our concern with explaining and defending the existence of the ontological correlativity presupposed by dyadic duties and rights, these functional versions of the Will Theory and the Interest Theory leave the main problem untouched.8 The correlativity involved in pairs of Hohfeldian incidents is simply picked up, unexplicated, from his tables.9 Motivated by my broader effort to give an account of the moral community as an articulated one, I  take the ontological correlativity of dyadic  rights and duties as the primary fact to be explained. As we saw in §2.4, this fact implies that ultimately, the correlative right and duty are each grounded in the same fact. Accordingly, I insist on taking the Will Theory and the Interest Theory as possible accounts of the correlativity of rights and duties. My alternatively tendentious approach sets the Interest Theory up for failure. In §2.4, we saw Raz’s version of the Interest Theory, as modified by Thompson (2004b, 333): Definition: “X has a right [against Y]” if and only if X can have rights, and, other things being equal, an aspect of X’s well-​being (his interest) is a sufficient reason for holding [Y]‌to be under a duty. Raz himself did not purport to be giving an account of dyadic rights; indeed, he denied that rights, as he defined them, were correlative with duties. Thompson’s alteration of Raz’s view gives us a purported definition of dyadic rights that claims to be able to reduce them to monadic normative elements. This is mysterious, and hence unsatisfactory. And even if the definition were further modified so as to say or imply that X’s interest is a sufficient reason for holding Y to be under a duty to X, is it mysterious how anyone’s interest could ground a dyadic duty. The Interest Theory presumes dyadic form but makes no attempt to explain it.

8. A similar complaint applies to the more inclusive accounts of the functions of rights offered in Wenar (2005). 9.  A  similar theoretical approach is taken by the defense of the Interest Theory in Kramer (2010). Like Hohfeld, Kramer limits his discussion to the law, presumes that claim-​rights and duties are correlative (and hence that the duties involved are owed to someone), and casts the Interest Theory as giving “the general considerations to whom any legal duty is owed” (Kramer 2010, 32).

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The same is true, for all its merits, of Wenar’s own alternative view, the Kind-​ Desire Theory (2013, 218–​219): Kind-​Desire Theory:  Some system of norms refers to entities under descriptions that are kinds (“parent,” “journalist,” “human,” etc.). Within such a system, claim-​rights correspond to those enforceable strict duties that the members of the relevant kind want to be fulfilled. This theory is impressively broad in the range of rights that it covers, extending well beyond morality. Yet the Kind-​Desire Theory no more offers a defense of the existence of dyadic rights and duties than does the Interest Theory. Although the idea of what an entity wants as a member of a certain kind is not the same as that of an entity’s interest, it is similarly monadic. To be sure, the content of the desire that the theory assumes mentions a relation between two parties. What is assumed takes the following form: B, as a member of the relevant kind, wants A to φ B. This is to assume, however, that B wants to be the patient of A’s action of φing—​a relation that, as we saw in §2.1, contrasts with the dyadic moral relation that we are hunting.10 Accordingly, any purported account of dyadic rights on the basis of the Kind-​Desire Theory will be, like that of the Interest Theory, reductive and mysterious. The Will Theory, by contrast, is nonreductive. It explains dyadic rights and duties on the basis of the higher-​order dyadic pair, powers and liabilities. To give a paradigmatic example: it explains the fact that the promisor’s duty to keep his promise is owed to the promisee by reference to the fact that the promisee has the moral power to waive her claim to performance—​and so, correlatively, to the fact that the promisor is liable to having his duty to perform extinguished by the promisee’s waiver. The Will Theory is at least a contender to explain the correlativity of dyadic rights and duties. The Will Theory, in invoking a moral power, presupposes one type of dyadic, correlative form and uses it to explain another. My own proposal, the Specificatory Theory, employs a similar strategy, but on the side of the duty-​holder. Although this approach is nonreductive, it offers the

10. Wenar appears to recognize this. In his formalization of the Kind-​Desire view (Wenar 2013, 219), he builds in that A has a duty to φ B—​and clearly does not take it that this makes the analysis circular. The formalization also states that the content of the right-​holder-​in-​waiting’s (B’s) desire is that the other party fulfill its duty (namely, to φ B). This description of the content of the desire might conceivably be read de dicto (as meaning that B wants A to do his duty regarding him, whatever it is); but on the same page, Wenar gives an example that would support a de re reading (focusing the desire on what φ it is such that A has a duty to φ B): “young children . . . want not to be abused.” Hence, this clause takes us back to the same relation of being the patient of another’s required action.

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prospect of explanatory gain. This explanatory potential arises from an important conceptual asymmetry between dyadic rights and moral powers. Whereas there are monadic rights and duties, which are not held against or owed to anyone, moral powers are necessarily dyadic in a way that supports Hohfeldian correlativity:  normative powers to affect someone’s Hohfeldian incidents are equivalent to liabilities in that person. “A moral power that is not a moral power over someone” is oxymoronic. Accordingly, while it is plausible to deny that there are any dyadic duties or dyadic rights (such as claim-​rights), one cannot plausibly deny that there are dyadic moral powers that are correlative with liabilities of others to have their incidents changed. After all, we do waive rights against other specific people. Although the Will Theory thus seems to have the right kind of form to account for dyadic rights and duties, and specifically their ontological correlativity, the Will Theory has been thought to face counterexamples. It apparently cannot account for inalienable rights, or individuals’ rights against criminal mistreatment, since those who hold such inalienable or public rights lack the core moral powers of control that the theory makes definitive of claimants (Wenar 2013, 226).11 It also has difficulty with the rights of noncompetent humans and with the rights of other animals, since these right-​bearers lack the capacity to exercise these powers. I will return to these challenging examples at the end of the chapter. Now that the rivals to the Specificatory Theory of dyadic rights have been briefly examined, I turn to examining the social background of dyadic rights.

3.3 Addressing Human Rights In this section, I will begin to unpack the idea, invoked by the Specificatory Theory, of an individual having a monadic right that “implies in the circumstances” that another individual has a duty arising from it, as the Specificatory Theory has it. Since the relevant circumstances are social, doing so means going into the social background of dyadic rights.

11. In defense of the Will Theory, Steiner (2013) argues that, given Hohfeld’s schemata, there cannot be inalienable rights, for to posit them would be to incur a vicious infinite regress (inalienability is, in Hohfeld’s terms, an immunity correlating to disabilities of others; but this immunity is in turn a right, so off we go). However, Biasetti (2015) convincingly replies by showing that the regress looms pervasively in Hohfeld’s schemata, and not only for inalienable rights. Biasetti argues that the most sensible cure is to loosen the Hohfeldian interpretation of opposition (from exclusive disjunction to the mere denial of conjunction), thereby introducing incompleteness into the system of Hohfeldian incidents because, for a certain pair of individuals and a certain action, it may be that neither opposite holds. If this is indeed the correct way to go, it would add to the grounds for moral indeterminacy adduced in §I.3.

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I will start with human rights, which are not generally thought of as dyadic. Yet some will object to speaking of monadic human rights. Talk of rights without specified counterparties, it will be urged, is what gives human rights talk a bad name (O’Neill 2005). Important as I  think dyadic duties and their correlative rights are—​and fastidious though I may be—​I find this objection overly fastidious. Even so, it carries an important grain of truth. It aptly suggests that talk of rights lacks practical importance if no specific persons have responsibilities for protecting or respecting those rights. Highlighting this truth brings forward, in a new way, the importance of the social division of moral labor. Explaining why taking this truth on board does not get us to dyadic rights will enable us to identify why the specific assignment of responsibilities represents a mere way station on our trek toward an understanding of dyadic rights and duties. In general, individual rights—​whether monadic or dyadic—​imply or are equivalent to constraints of duty that serve to protect the right-​holders or to ensure that they are respected in ways not entailed by the impartial and rational promotion of the good.12 The type of monadic right that Gopal Sreenivasan has aptly called a “deontological” right does this by “circumscribing the right-​holder with a barrier of just the right weight: one that shields the individual by blocking the [all-​things-​considered] ought from permitting any action against her that fails to produce a sufficient increment of good, whatever that increment might be” (Sreenivasan 2010, 477; compare Dworkin 1984). Such a deontological right is an intelligible case of a right, even if its practical implications remain unclear. Dyadic rights, too, can generate constraints not entailed by the impartial and rational promotion of the good. How they can do so is, in one way, the topic of much of this book. A full understanding of this point will rest upon seeing how an articulated moral community can take us beyond consequentialism and deontology, enabling the pursuit of a constructive ethical pragmatism (CEP), as explained in ­chapter 1. To telegraph the idea, I revert to Michael Thompson’s distinction between persons and agents, which we encountered in §2.1. An agent is merely caught up in the rational pursuit of the good (whether impartially or not). A person, by contrast, is also bound with others in a web of dyadic normative relations. How a person ought to act is shaped by these elements. One important aspect of the objection that assertions of monadic human rights lack practical importance is that in lacking specific counterparties, they are not such that people can be wronged by their not being honored. In response to this worry, I will develop a distinction between a right’s being directed against a 12.  No general definition of rights will be noncontroversial. Mill (1988, chap.  5) at least recognizes the need to account for the appearance that rights are different in kind from general considerations of utility. On the distinction between the right and the good, see §1.1.

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specific person (being dyadic) and a right’s being addressed to certain individuals. This distinction will isolate the central target of this chapter’s analysis—​the idea of dyadic rights and duties; and laying out the idea of a right’s being addressed will help get on the table further elements of their social background. The conceptual possibility of monadic rights remains a vain abstraction, however, unless we can in principle identify specific people who, by their actions or omissions, become chargeable with having acted wrongly because of having violated or failed to respect someone’s human rights. To do this, in effect, is to set out to whom a given human right is addressed. I will first define what it is for a right to be addressed and then characterize the social conditions that give reality to this kind of address. In explicating what it is for a right (monadic or dyadic) to be addressed to someone, we may adapt the schema offered by the would-​be defender of the monadic reduction of wronging encountered in §2.1, and then highlight an explanatory connection. Accordingly, we may gloss what it is for a right to be addressed to someone as follows: (Address): B’s right that p is addressed to A if and only if A ought to take significant steps to help see to it that p and the fact that B has a right that p explains or justifies this.13 Although dyadic rights can be addressed, an addressed right need not be dyadic. Yet the explanatory connection built into this idea of a right’s being addressed provides a crucial element of the social background of the Specificatory Theory, which presupposes such an explanatory link between its two main elements. We need to see, though, how responsibilities regarding rights can be addressed to specific individuals. Monadic human rights may be said to “exist” in an abstract way if they ought to be promoted and respected. Compatibly with thinking this, however, we may agree with the spirit of the objection with which this section began, and hold that rights that are not addressed lack “real” existence. Until it is specified who is responsible for protecting and respecting them, their existence remains of merely theoretical, rather than practical, importance. Thinking along the lines of social-​contract theory in the Kantian tradition, Pogge argues that in the absence of society human rights cannot be violated or honored; they cannot be fulfilled

13. As Mark C. Murphy has pointed out to me, we must admit that this appeal to explanation or justification needs to be qualified to exclude explanations of the wrong kind.

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or unfulfilled.14 In a socially unorganized state of nature—​one that is both a juridical and an ethical state of nature—​such claims would be addressed out into the void. In line with Pogge’s institutional understanding of human rights, then, we may say that human rights are addressed, in the first instance or as a default matter, to this or that society.15 Yet addressing a right in a general way to a whole society remains an unsatisfactory way of giving it “real existence.” To get beyond this unspecific kind of address, we need to take on board the importance of the division of labor, such as is highlighted in Henry Shue’s treatment of human rights (Shue 1996). In a famous discussion questioning the practical difference between positive and negative rights, Shue effectively asks what sort of responsibilities need to be specifically assigned to people in order for rights of either kind to be meaningfully guaranteed to individuals. “[I]‌n an organized society,” he suggests, “insofar as there were any such thing as rights to physical security that were distinguishable from some other rights-​to-​be-​protected-​from-​assaults-​upon-​physical-​security, no one would have much interest in the bare rights to physical security” (1996, 38). As he points out (37–​38), it is impossible to protect anyone’s rights to physical security without taking, or making payments toward the taking of, a wide range of positive actions. For example, at the very least the protection of rights to physical security necessitates police forces; criminal courts; penitentiaries; schools for training police, lawyers, and guards; and taxes to support an enormous system for the prevention, detection, and punishment of violations of personal security. There is no pretense here that the necessity in question is conceptual. Indeed, the institutions in this list, while now quite common around the world, are quite contingent, historically evolved ways of carrying out functions that conceivably might have been organized quite differently.

14. On the impossibility of violation in the absence of society and social institutions, see Pogge (1992, 51). On the impossibility of fulfillment and nonfulfillment, see the revised version of this essay in Pogge (2002, 176). 15. I here leave to one side the issue of whether to think of the relevant society as a national one, a local one, or the inclusive human one. Pogge (2002, 72) writes that “[i]‌n our world, national societies are the paradigmatic examples of relevant social systems, and the responsibility for the fulfillment of your human rights falls upon your government and your fellow citizens.” A proper examination of the truth of this claim would require a far more definite account of what counts as a “relevant” social system than I am able to provide here.

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Shue is not concerned with how human rights get specifically addressed. He is concerned, instead, with what is involved in seeing to it that they are fulfilled. His empirical observations, however, may be adapted so as to suggest ways that we might understand the division of moral labor in society, and thereby help us think about the social background of dyadic rights. We can adapt them by folding back in concern with the question about to whom a right is addressed.16 We can distinguish three importantly different social conditions that are relevant to whether human rights are addressed in appropriately specific ways. For the sake of concreteness, consider the purported human right to employment security.17 The first possibility is that organized social institutions exist, but that they include none that make any provision for employment security. In that social condition, this human right is addressed merely unspecifically. In that condition, it is in the first instance simply incumbent on society (or societies) to see to it that relevant institutions are created. This presumably means that the members of society, undifferentiatedly, have duties to help see to it that their society creates such institutions. The second possibility is that unspecific address and specific address are each importantly salient. Suppose that social institutions addressing employment security have been established. Adequately following through on this will require that specific responsibilities pertaining to employment security be allocated to specific officials within those institutions. If this is done, the rights will have become specifically addressed to these specific officials. It is practically important that rights be specifically addressed to people who have definite responsibilities with regard to them; however, it may well be that the social institutions specifically charged with employment-​security responsibilities are significantly inadequate for ensuring that individuals’ employment-​security rights are fulfilled.18 If the officers of the institution cannot get their act together, the members of society to whom the rights remain unspecifically addressed may be collectively required to scrap it and start over.

16. As noted by Pogge (1992, 50), it is perfectly possible to combine an institutional account of how responsibilities for fulfilling human rights are allocated with an “interactional” account, which allocates the responsibilities to individual persons. 17. The Universal Declaration of Human Rights, Article 25, (Feinberg 1970, 254f.), and other sources have disparaged such purported rights as “manifesto rights.” For an effective response to this dismissal, see Pogge (2002, 73–​75). 18. By this, I mean that they could reasonably do a lot better: see Pogge (2002, 71), which says that “[a]‌human right is fulfilled for some person insofar as she enjoys secure access to its object.” This mention of security seems essential, in that it imports a level of counterfactual robustness. In the text, for convenience, I have transposed this robustness to the institution’s task—​a way of speaking that would be redundant if we stuck with Pogge’s definition of “fulfillment.”

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Finally, simplifying and idealizing, there is the possibility that society contains institutions that realize, as far as is reasonably possible, the human right to employment security. So long as that condition lasts, the unspecific address of this right will recede in importance, being for practical purposes largely superseded by its being specifically addressed to the relevant institutions (the employment security agency, for instance) and their officers. As the example of employment security illustrates, the contingent establishment or evolution of social institutions can give rise to the existence of people who, by virtue of their role or office, have special duties to see to it that a given right is fulfilled or respected—​duties that are ultimately grounded by reference to that right. This means that contingent developments can affect to whom a right is addressed. This fact remains merely part of the social background of dyadic rights, for, as we have seen, the idea of a right’s address, whether general or specific, is monadic. With this rough account of the social background of dyadic rights in hand, we can now turn to the home territory of dyadic rights, that of transactional duties and private rights. In so doing, we will be moving away from the specifically institutional ways in which the social division of labor is typically embodied in the case of human rights to more informal, practice-​based ways. We are still driving toward an understand how dyadic rights and duties arise from a social division of labor wherein rights come to be specifically addressed.

3.4 Generalizing the Account to Include Transactional Duties and Private Rights In part because contemporary human rights discourse occurs largely in, and largely concerns, an international context, the need for contingent social institutions or practices to help realize human rights is particularly obvious. The role of governments in doing some of this institution-​building is similarly hard to escape. Further, in the example that I  have used—​the right to employment security—​it is reasonable to think of some of the relevant institutions as governmental bureaucracies and the relevant determinations as the province of public, positive law. Yet the concepts of directed duties and of their correlative rights had their primary home instead in the bilateral transactions of private law—​the law of contract, tort, and property (see Ripstein 2000). Certainly in the Anglo-​ American tradition, these arose in ways much influenced by informal social practices. These are all the more important for the account here, given our focus on morality rather than law. I will take as my principal examples privacy, promising, and special obligations to family members. We thus move from the clearly

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institutional to the more informal, and at the same time from rights that are usually thought of as monadic to ones that are usually thought of as dyadic. In the present section, however, we will still be concerned with the social background of dyadic rights and duties. Some will think that, despite this attention to informal practices, the account remains too institutionally focused. In response, I would say—​recurring to our leading metaphor—​that while informal material, such as is well captured by the virtues, may make up vital organs of the moral community, the skeleton of dyadic rights and duties that articulates it, which is here the target of our analysis, is supported by social practices that satisfy Rawls’s broad definition of an “institution”: each is “a public system of rules which define offices and positions with their rights and duties, powers and immunities, and the like” (1999b, 47). The system is public because morality is by its nature public. In each of the principal examples just mentioned, what we will find is a set of rights and duties reflected in and shaped by social practices or institutions, each answering to an important and universal moral concern.19 Unlike with my illustrative case of a human right, however, the social institutions in question are informal and customary and, bracketing issues of patriarchal injustice, have long existed in reasonably adequate form. The moral obligations among family members that I have in mind here—​of parents toward children and of children toward parents—​are older than any legal system and are shaped largely by custom. The same had been true of rights of personal privacy regarding one’s body and one’s home—​although interestingly, new technologies are putting our customary privacy-​protecting practices under pressure, spurring legislatures to bolster them with explicit laws (Allen 2011). As to promising, while it seems to have grown up symbiotically with the legal mechanism of contract, the practice of promising does seem to have an informal, customary shape of its own. To see different rights or duties as serving different moral concerns is to presuppose a division of moral labor. It is to follow Pogge’s middle path—​one that neither understands rights in a way that cuts them loose from the good nor understands rights in a way that grounds each of them in the impartial pursuit of the overall good. The reason for having a division of moral labor at all is to

19. We might think of morally significant concerns as goods that we morally ought (as indicated by some other, in some sense more fundamental principle) to protect or promote—​thus invoking what would be, to me, a pleasing, progressive alternation between deontic and evaluative categories. The resulting lack of a sharp or rigid separation of the right and the good is what the discussion of these categories in §1.1 leads us to expect. For an account of our moral psychology supportive of this more complex view of our commitments, see §8.4. For how a Kantian can incorporate such relatively complex interweaving of the right and the good by considering the primary good or end served by a given type of duty, see Herman (work in progress).

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divide the responsibility for pursuing the overall good—​a concept whose concrete content we only roughly grasp—​so that some concentrate on some aspects of it and others on other aspects. For this division of moral labor to work out soundly and justifiably, each morally important concern must be adequately met. This consideration implies that any adjustment in the set of rights and duties has systematic—​and presumably also context-​sensitive—​aspects that would need to be duly considered on reflection.20 To consider the goods relevant to morality in this way is also to consider them from the social point of view toward which we are driving—​the point of view of the articulated moral community. This way of considering goods in working out principles of right and duty is thus somewhat less individualistic than T. M. Scanlon’s contractualism, in which the point of a principle is to be derived from the reasons that individuals would have for reasonably rejecting a set of moral norms that omitted the principle (Scanlon 1998, 201). It may have more in common with David Hume’s account of the artificial virtues, each of which Geoffrey Sayre-McCord (2016, 443) sees as “solv[ing] salient shared problems that we would otherwise face,” and which David Wiggins (2006, 247–​248)—​ roughly in line with the main thesis of this book—​interprets as constitutively giving rise to a more ramified phenomenology of wrongness.21 Because we struggle, philosophically, to give adequate accounts of parental obligations, filial obligations, rights to privacy, and promissory obligations, any specific story that I offer about how these moral institutions answer to underlying universal, moral concerns will be substantively tendentious.22 In the human rights case, because of the imprimatur of the Universal Declaration, the last section’s identifications of the concerns underlying rights may not have seemed particularly controversial. In this space, I  cannot pretend to offer serious accounts of family obligations, privacy, or promises; but I hope to offer plausible illustrative sketches of each. 20. I owe this point to Herman (work in progress). 21. I am grateful to Sayre-​McCord for discussion of Hume, and to Tom Sinclair for pointing out the relevance of Wiggins’s reading to my account here. Despite recognizing these affinities between Hume’s view (so read) and my own, I remain inclined to think that there is an important, principled difference between recognizing that conventions can shape and elaborate our moral sentiments and concerns—​even constitutively—​and holding, as I do here, that we, the moral community, can authoritatively adopt new, objective moral norms. Compare also the discussion of “functional refinement” in Ypi (2013, 121). 22. Constructive ethical pragmatism, presented in ­chapter 1, does not hold that attention to this underlying good enables us to “grasp . . . an incompletely specified [but true] principle” (Dancy 2004, 137), but that our efforts to work out principles of right in light of such goods and to specify such goods in light of principles of right can enable us to make progress in our moral understanding and may generate new moral norms.

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Thus, we might see underlying, morally significant concerns in each case, as follows: • In the case of family obligations, the basic concern in each direction is that the vulnerable and dependent get adequate care. Both the very young and the very old are markedly vulnerable and dependent. • In the case of privacy rights, while there is some underlying concern with vulnerability to harm, I have argued elsewhere that a more fundamental underlying concern is with protecting the growth and maintenance of individuals’ fragile capacity for autonomy (cf. Richardson 2012b). • In the case of promises, I propose that we see the underlying concern as that of extending our control over future interactions with others.23 As if in response to such underlying concerns, moral (duty-​allocating) practices have built up around them. These practices can be seen as representing the sorts of unified responses that Kant described the ethical state of nature as lacking. Today, family practices are quite variable, which is good; but they do generally give parents special responsibility for caring for their children and the offspring special responsibility for caring for their elderly parents. As with the more formal institutions that have grown up to address human rights such as employment security, these common ways of dealing with the vulnerability and dependence of small children and the elderly are contingent developments. We might, instead, have developed more collectivized regimes. Generally, however, we have not. Turning now to our practices pertaining to privacy: I have in mind, for instance, the sort of practices to which the U.S. Supreme Court makes reference in its attempts to settle what counts as an unreasonable search and seizure. While these practices are quite variable from society to society and quite debatable in their details, what seems to mark them out as well suited to shielding fragile autonomy is that they tend to define protected zones that surround matters regarding which we are sensitive to the gaze or attention—​and especially the disapproving attention—​of others. Hence, again, the specific shape that our practices have taken seems to influence, concretely, the contours of our property rights.

23. Because I am headed toward emphasizing the role that authority plays in underlying all directed duties, it would cohere with my approach instead to adopt the view of Owens (2006) that the interest underlying promising is in extending one’s authority over the actions of others. At the present stage of my argument, however, I am still working my way toward such a dyadic account of authority.

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In the case, finally, of promissory obligations: Building on his principle of fidelity, mentioned in §I.4, Scanlon (1998, chap. 7) made a valiant effort to state principles that could capture promissory obligations, as we ordinarily understand them, without giving any essential role to our practices of promising and instead focusing on assurance and expectations. As Kolodny and Wallace (2003) convincingly argued, Scanlon’s account of promissory obligations is viciously circular. In characterizing the relevant ways of creating expectations in others, it tacitly presupposes the wrongness of promise-​breaking, which was what his assurance principles were meant to explain. Kolodny and Wallace offer instead a hybrid view, in which appeal to the practice of promising crucially helps generate a nonquestion-​begging, but still moral, reason to keep one’s promises—​namely, the pro tanto wrongness of taking unfair advantage of such a useful practice of social cooperation. It does appear to be difficult to give a proper account of our promissory obligations without taking account of how our contingent practices of promising shape how we respond to the underlying concern that promising serves. Similar points may be made even about the rights that in some sense correspond to the core negative duties not to steal, assault, torture, or interfere with the liberties of others. About property rights, Kant’s point is particularly compelling: these remain indeterminate absent a political regime that gives them definite shape. That, again, is why he held that each person has a duty to exit the state of nature and enter political society. The concept of assault similarly requires specification is less obvious, but it was brought home to me recently when, in response to my having pointed out to a fellow railway passenger that his cellphone conversation was prohibited in the quiet car, he brusquely mussed my hair with the palm of his right hand as he stalked out. “That was an assault!” my lawyer friends told me. In some U.S. states, that is apparently so, as a matter of law; but in some not—​thus illustrating that there are cases at the border of purportedly justified attack that make even assault hard to define. My fellow passenger may have swiftly decided that mussing my hair was a morally permissible action, not rising to the level of an assault. We thus see that an apparently simple notion such as assault calls for some specification. Suppose that my fellow passenger’s judgment about what constitutes assault was, despite its swiftness, sincere and conscientious, but that it never gets the kind of social uptake described by the convergence and ratification stages of my three-​stage account. What sort of moral effect could it have?24 The answer to

24. I am grateful to Rowan Cruft for raising this issue and providing some pointers about how to deal with it.

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this question is complicated by the fact that, in our actual society, we do have well-​developed legal understandings of assault in the background. Given that, this conscientious judgment surely would not rebut the law’s, but it might provide a mitigating excuse if the law recognized that this is a doubtful case. Another possible upshot of this judgment would be that, although the law still implies that he acted wrongly, he did not morally wrong me. The case for that conclusion would be stronger if I agreed with his assessment that mussing my hair did not count as an assault. Even the prohibition on torture importantly benefits in some respects from being defined by social practices, which inform our understanding of what is cruel, and by legal efforts at definition. The fact that parallel points also apply to noninterference with liberty is, by comparison, obvious—​whether developed along the lines of Kant’s thought that a definite way needs to be worked out to make each individual’s liberty compatible with a like liberty for everyone else, or along the lines of Rawls’s thought that we need to determine what the basic liberties are. The line that I am taking here is not a crude social constructivist one. What I am urging is a thought that, as we have seen, was important to Kant, and that has been shared by others, including Thomas Aquinas:  the thought that compatible with there being some objective, practice-​independent, and institution-​ independent content of each of these prohibitions, there is also a need for further determination of them by the moral community.25 As Kant suggested, this further determination needs to be socially coordinated so as to keep everyone—​that is, all persons—​ethically, on the same page.26 In all of the cases I have discussed, our social practices help give specific address to the rights that they support. Because these moral practices that shape familial duties, privacy rights, and promissory duties have been so long established, we do not currently invoke general, unspecifically addressed rights in any of these domains. Indeed, in the case of promising, our very conception of the rights and duties at play depends on the practices we have evolved for allocating specific responsibilities. No general memories survive of the historical transitions from merely unspecific address to specific address in these cases. Nonetheless, we can imagine how things may have been antecedently to these rights being specifically

25. I am grateful to Mark C. Murphy for reminding me that Aquinas had this insight before Kant did. This way of framing the point provides an initial way of resisting the suggestion put forward by O’Neill (2005) that if the specification of rights is not a priori or noncontingent, then it is merely conventional and lacks universality and objectivity. 26. See the discussion of Kant’s conception of ethical community in §2.2.

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addressed, and thereby come to appreciate better how, for these private moral rights as well, specific address is both practically and conceptually important. We also may directly consider the practical importance of the ways that familial, privacy, and promissory rights are specifically addressed. Our childrearing practices, in generally not being collectivized, whether in the way imagined by Plato in the Republic or otherwise, are structured by a social division of labor that makes plain that children’s claims for support are addressed, in the first instance, to their parents. In part, no doubt, as a result, the inverse is true at the end of life: elderly parents’ claims for support are addressed in the first instance to their children—​albeit in ways, and to an extent, that varies considerably with how much state support is offered to the elderly. Our practices of privacy protection separate addressees of privacy claims from nonaddressees in complex and shifting ways. For instance, rights of privacy protection are realistically addressed to banks and other institutions that record our financial transactions (though now, to be sure, we are increasingly asked to waive these); but rights of privacy protection pertaining to our movements are not currently addressed to public transit systems, even if, through our use of electronic fare cards, they are recording those movements. Finally, one valuable function of the practice of promising is to crystallize out, among the wide spectrum of social interactions whereby we seek to control the future actions of others, which of these involve a right effectively addressed to someone in particular. Suppose that I am doing all that I can to see to it that the Hot Band comes to play at my child’s wedding. I let the singers know how much this would mean to me; I tell the guitarist that if they come, I will give a large gift to the group’s favorite charity; and from the drummer, I extract a promise that the group will come. Plainly, only the last of these attempts at influencing the group generates a specifically addressed claim; it is addressed in the first instance to the drummer.27 Of course, this claim intuitively seems not merely to be addressed specifically to the drummer but also to represent a dyadic right that is correlative with the drummer’s duty to see to it that the band shows up at the party. Yet we are still working our way toward idea of dyadic rights and duties, as we have yet to account for the ontological correlativity that is their distinguishing mark. Fortunately, we have accumulated a number of important insights along the way about the pragmatic importance of the division of moral labor and how it facilitates our seeing to it that rights are specifically addressed. It is now time, however, to vindicate 27. Whether the claim is also aptly addressable to the group will depend on contextual details pertaining to whether the drummer has the power to bind the group. On this sort of issue, see the illuminating account in Hedahl (2013a).

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dyadic rights and duties—​and also to put in place the materials of the input stage of indeterminacy-​reducing moral progress—​by defending the Specificatory Theory of dyadic rights and duties.

3.5 From Specific Address to the Specificatory Theory of Dyadic Rights and Duties In this section, building on the previous section’s account of how, via the division of moral labor that arises from social institutions and practices, rights come to be specifically addressed, I will argue for the Specificatory Theory of dyadic rights and duties stated in §3.1. This argument will unfold in the following five steps: 1. An individual who is the specific addressee of a moral right is charged with a morally important responsibility. 2. Given the fundamental moral equality of individual moral agents, one who is charged with a morally important responsibility is charged as an intelligent person and as a participant in the system of moral rules, rather than as either a subject or a legislator. 3. An intelligent individual who is a participant in the system of moral rules and who is shouldered with an important moral responsibility faces an unavoidable discretion, which she is often called upon to exercise conscientiously.28 4. Conscientious exercise of this discretion amounts to exercising a moral power to specify the duty in question, introducing a dyadic element. 5. The importance of specifically addressing moral rights to specific individuals as intelligent beings provides an intelligible explanation of why the dyadic character of this moral power to specify extends to the duty being specified, and so to the corresponding right, thereby explaining the correlativity of the duty and the right. Before launching into this argument, it will be helpful to have in view an example of this kind of authoritative discretion arising from a right being addressed to a specific person. In §4.2, I will develop at length such a case, which involves exactly two individuals. To exemplify the broader idea of duties involving discretion, we could look to §I.2’s case of Dr. Jones’s determination regarding the use of placebo controls. Another such example arises from what we would commonly

28. Of course, it is also true that often it will be perfectly apt to act habitually, as when one avoids casually betraying a friend’s deep secret.

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call parental duties toward their children. In this arena, the room for discretionary judgment is particularly noticeable. That is because, as in the case of the judgment of a professional such as Dr. Jones, parental judgment—​conscientious discretionary judgment, as we may say, anticipating step 3—​is substantively protected by moral norms shielding the autonomy of these judgments. In addition, in the parental case, as in the medical-​research case, there is considerable reasonable disagreement about how to deal with conflicts that arise among the multiple values and commitments relevant to the responsibility in question. Imagine a family with three children: one a highly talented budding violinist, one with severe mental deficits, and one a decent student without any obvious specific talent. This family faces difficult issues about how best to reconcile the two aims just mentioned—​fostering their children’s talents and treating them justly. They could decide to do the best they can to educate each child, subject to spending equally on the education of each. They could decide to take a more prioritarian line, spending the most on educating the child with special needs. Or they could decide to proceed in a more perfectionist way, spending the most money on educating the budding violinist. Although morality likely does not constrain them to one of these approaches over the others, it does make it their responsibility to educate their children and treat them justly and, in so doing, asks them to reconcile these aims as best they can. These examples suffice to remind us that it is not uncommon for duty-​holders to be stuck having to make conscientious discretionary judgments about how to interpret their duties. With this in mind, we can turn to filling out the five-​step argument. Step 1: My argument for the Specificatory Theory begins with a pair of moral agents, one of whom (B) has a right that is specifically addressed to the other (A). This means, by definition, that A has a duty to take significant steps to help see to it that B’s right that p is fulfilled—​a duty explained or justified in an intelligible and nondebunking way by B’s right that p. This implies not only that A has a duty of which B is the patient, but also that A has a moral responsibility for helping in a significant way to see to it that B’s right is fulfilled. Step 2: To bring in the idea of intelligence, we turn to unpacking this idea of a moral responsibility. Sometimes the term “responsibility” merely provides another way to refer to the relevant duties. At other times, however, to talk of “responsibilities” is to refer to addressees’ duties to use their judgment and discretion in determining how best to discharge the duty addressed to them. It is the latter, forward-​looking sense of “responsibility” that is applicable here.29 In 29. For an extended development of the idea of forward-​looking responsibility that presages in rough fashion the account set out here, see Richardson (1999).

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being charged with a moral responsibility in this latter sense, moral agents are so charged as intelligent beings, in the Deweyan sense mentioned in §1.1—​that is, as beings able and willing to rethink their aims and commitments on the basis of reasons. That they are so charged follows from the nature of the responsibility specifically addressed to them and the fundamental moral equality of moral persons (to speak proleptically). The relevant feature of the task they are charged with follows from the last section’s account of the way that morally significant concerns underlie the social division of labor reflected by ways that rights come to be specifically addressed. The specific addressees of these rights are, in effect, being asked to take some special responsibility for this concern. These underlying concerns are the principal basis for explaining or rationalizing any specific moral practice that grows up in response to it. To be sure, neither normatively nor historically is this a one-​way street: the practices that grow up can also constitutively reshape and elaborate the underlying concerns.30 And compatibly with this observation about the importance of underlying concerns, some of the aspects of that detailed practice may be accorded intrinsic moral importance. This is what has happened, for instance, with the demarcating function of our practices of promising, which accord special moral importance to promising in contrast with more informal types of agreement.31 Alternatively, concrete aspects of the lived practice may enable and encourage ways of conceiving the underlying concern that were unavailable when the practice got going (see Herman 2007). Nonetheless, the continuing importance of the broader, underlying moral concern militates against any rule fetishism. At some level, it always remains a live question whether the practice is well serving the underlying moral concern or concerns that it has grown up to meet.32 This kind of openness to reconsidering purported restrictions’ details on the basis of the underlying concerns that these restrictions are supposed to promote and protect is an important feature of all special responsibilities, but especially of moral ones. There is a serious moral ground for insisting that special moral responsibilities have this kind of openness. Again, it arises because special moral responsibilities are addressed to individuals who are, in Dewey’s sense, intelligent individuals: ones who are able, reasonably and rationally, to make up their own minds about things rather than simply following directives unthinkingly or by 30. I am grateful to Sophie-​Grace Chappell, Rowan Cruft, Alon Harel, Peter Jones, and Tom Sinclair for having pressed me on this point. 31. This is not a point about the words, “I promise.” 32. It is also, equally, an open question whether any given characterization of the underlying concern is an adequate one. On the symmetry in this respect between the right and the good (as we might put it), see ­chapter 1.

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rote (Dewey 1993, 6–​7). If doing justice in the most obvious way would make the heavens fall, they at least have a responsibility to consider whether there is another, less disastrous way to do justice. The special responsibilities taken on by the addressees of rights in effect entrust to them, in some limited way, care for the underlying concern, together with both a fragmentary set of instructions about how to answer to that concern and some authorization to use their discretion. The approach that they are called upon to take is one that I have characterized as involving “the participant conception of rules” (Richardson 1999, 235–​237). This conception, in good Deweyan fashion, denies the dichotomy or “dualism” that is central to John Rawls’s early account of rule utilitarianism in his article “Two Concepts of Rules” (Rawls 1955). That essay influentially developed an account of moves within the rules of a practice, using examples such as that of stealing a base in baseball—​an action that cannot be described without drawing on the rules of the game. Rawls there distinguished between (1) the largely past-​ oriented perspective of persons within a practice, who might ask, by reference to the rules of the relevant practice, why a batter was called out or a person was put in jail; and (2) the largely future-​oriented perspective of someone establishing or legislating a practice, who might ask a general question such as whether designated hitters should be allowed or whether mandatory sentencing should be dropped. The participant conception, in resisting this dichotomy, asks us to focus on practical (and so, future-​oriented) but particular questions faced by this or that individual about how he or she ought to act. In being called upon to face such questions intelligently within a context rich enough to involve some rules with constitutive implications,33 individuals are called upon not to take the given contours of our moral practices as being beyond question. Their responsibilities are responsibilities to try to do the right thing; but as we understand these individuals from the outside, we need to realize both that it is often difficult for them to figure out what is the right thing to do and that (as argued in §I.3) because of conflicts among moral considerations—​including the kinds of conflicts just mentioned—​the right thing to do can be objectively indeterminate. Individuals to whom moral responsibilities are specifically addressed are called upon to exercise them intelligently in the sense explained, as equal participants in the practice. Step 3: Because they face epistemic difficulties and the possibility of indeterminacy just mentioned, the specific addressees of moral rights must exercise their discretion conscientiously. They must sincerely attempt to act rightly in order for their exercise of their discretion to be legitimate. Often, they will err: Morally

33. I am grateful to Rowan Cruft for pointing out the importance of this qualification.

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felicitous exercises of their discretionary judgment are tightly limited by the objective moral considerations that bear on the situation of action. Whatever room for authoritative discretionary judgment there may be is likely to be highly circumscribed. Sometimes, however, they will arrive at new specifications that lie within the objective zone of indeterminacy. Because of the importance of attending seriously to the relevant moral considerations, the requirement of sincere and conscientious judgment rules out the frank embrace of constitutive authority exemplified by the third umpire of the joke well known among philosophers (“until I calls ’em, they ain’t”).34 In exercising their discretion, the addressees are not called upon to exercise their discretion on the basis of the false view that there is a determinate right answer to every aspect of the practical moral questions they face, but they must not believe that, with regard to any significant such question, it is morally indeterminate how they ought to choose.35 Believing this would almost surely undercut any effort to proceed conscientiously. In this respect, they are called upon not to believe that the theory of indeterminacy-​ reducing moral progress propounded in this book applies to the case before them. They are not, however, called upon to disbelieve the theory altogether. Step 4:  If the foregoing points are correct, then the specific addressees of rights have some degree of moral power to specify the rights of the individuals whose rights are addressed to them. What is implied here is not a moral power to specify these rights in a general, universally applicable way. Like all moral powers, this one is directed to particular people, and so affects only the rights or duties of those people. Further, as I have said, this power will in most cases arise only within the perhaps tight limits established by the relevant, objective moral considerations. The authoritative power to settle how the responsibility or duty should be interpreted can arise only within zones of moral indeterminacy, the existence of which were defended in §I.3. Wherever such a power does arise, a truly dyadic or directed element has entered the story. As noted in §3.2 in connection with the Will Theory, moral powers are essentially dyadic.36

34. This joke is reported and commented upon in Brandom (1994, 184). The first umpire says, “I calls ’em as I sees ’em.” The second umpire says “I calls ’em as they is.” The third umpire is not outdone. 35.  I  am grateful to Gabriel Broughton and the other students in Georgetown University’s Moral Innovation Seminar, in fall 2014, for help in formulating this condition. 36.  Strictly speaking, we should say that moral powers are essentially nonmonadic. As Pierfrancesco Biasetti has pointed out to me, it seems possible for A to have a moral power to waive or alter B’s duty to C. I here leave aside such cases. They are more likely to arise in the law, which involves very fine-​grained divisions of responsibility, especially when it comes to officials. The account here is built on a two-​person (albeit not normatively dyadic) relationship: that between a right-​holder and a specific addressee.

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Step 5: What remains to be explained is how this role for the moral power to specify the duty in question, which is in itself a dyadic element, provides reason to conclude that the duty itself is dyadic—​that is, is owed to the right-​holder whose specifically addressed right is in question. My explanation of this follows the general pattern of the Will Theory—​though, again, we are working here on the duty-​holder’s side, not the right holder’s. In the Will Theory, too, the fundamental dyadic element is a moral power—​in its case, the moral power to waive a right (or otherwise to exercise executive control over it). The Will Theory’s explanatory schema—​the nub of its case for taking this moral power to be the basis of understanding the right as dyadic—​has three parts: ( W1) The executive power in question affects, in a practically significant way, the content (or demands) of the other party’s duty. ( W2) There is an intelligible moral explanation as to why this will generally be so—​namely (in H. L. A. Hart’s words), that “the individual who has the right is a small-​scale sovereign to whom the duty is owed” (Hart 1982, 183). (W3) This explanatory fact, together with the specifics of the case, serves to ground both the right and the duty in question. When a right-​holder waives a right—​say, a monadic right that A φ—​that has clear implications as to the duties of the other party. Further, crucially supporting the correlativity of the right and the duty, the moral imperative to respect individuals as small-​scale sovereigns grounds both the rights to be protected and the corresponding duties to respect those rights. The explanatory scheme of the Specificatory Theory of dyadic rights and duties shares this three-​part structure: (S1) When operating within a zone of objective indeterminacy, the specificatory power in question affects, in a practically significant way, the content (or upshot) of the other party’s right. (S2) There is an intelligible moral explanation as to why this generally will be so; namely, the fact that duty-​holders are called upon intelligently and conscientiously to exercise discretion in carrying out the duties that arise when another’s right is specifically addressed to them.37

37. If the Specificatory Theory has any advantage over Sreenivasan’s Complex Hybrid Theory, it is here. At least as so far developed, Sreenivasan’s theory concentrates on capturing the “distinctive structure” of dyadic rights and duties (Sreenivasan 2010, 482 and 494)—​viz., that they are dyadic—​without concentrating on making the importance of this structure intelligible.

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(S3) This explanatory fact, together with the facts of the case, serves to ground both the right and the duty in question.38 As a specific addressee of the relevant (initially monadic) right, the duty-​holder has been placed in the position of having to carry out intelligently a moral responsibility vis-​à-​vis some particular person.39 The fact that the duty-​holder is called upon intelligently and conscientiously to promote or respect the other’s right explains both why the duty-​holder has a duty to the right-​holder and why the right-​holder has a right against the duty-​holder, establishing the ontological correlativity of this duty and right. In this way, dyadic rights and duties arise.40 This five-​step argument thus supports the Specificatory Theory of dyadic rights and duties. Before leaning on it to describe the input stage of the three-​ stage account of moral innovation, I  will defend the theory against a pair of objections and against its rivals.

3.6 Objections to the Specificatory Theory Two objections to this theory are likely to be especially insistent. One is that, despite the importance given to the paradigm case, the Specificatory Theory overemphasizes the moral power of the duty-​holder. The other is that it cannot count as a theory of all dyadic moral rights and duties because some of these are sufficiently sharp that they afford no room for any specificatory power. The first objection focuses on the fact that although the Specificatory Theory is symmetrical between duty-​holders and right-​holders, the five-​step argument for it, especially in its first three steps, emphasizes the moral powers of the duty-​ holder. To many, this will seem backward. As they might put it, “Surely rights function, above all, to give the right-​holder special powers!”41 In response, I would like to make three points, the first two of which can be quickly entered. First, please remember that a moral power is very different from 38. Accordingly, I am not arguing that the dyadic feature of dyadic rights and duties reduces to the dyadic feature of the specificatory power. I am grateful to Rowan Cruft for pressing me to clarify this. 39. I see no obstacle to allowing that there might be responsibilities of this kind that one owes to oneself. 40. Because the content of each correlative, dyadic right-​duty pair must be identical, while the definition of address does not imply that the addressee simply has the duty to see to it that the right is fulfilled, it would require a further step to settle which dyadic rights and duties are, per this account, now on the scene. 41. I am grateful to David Copp and Frances Kamm for their particularly strongly put versions of this objection.

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power in the ordinary sense. The moral power in question is that of altering rights and duties via authoritative specification. Because the conscientiousness condition implies that this power cannot be used arbitrarily, it is not the kind of power from which domination can be easily built.42 Second, and relatedly, the moral power that the Specificatory Theory attributes to these duty-​holders is inextricably bound up with the responsibilities that they carry as the specific addressees of rights, and it merely reflects the fact that they are called upon to fulfill those responsibilities intelligently, rather than by the rote application of rules. My third response to this imbalance objection recurs to the principal reason that the Specificatory Theory takes an asymmetrical form. As I  explained in setting out the theory, it does so because of the importance of leaving open the question of which entities are persons, and because only duty-​holders, and not right-​holders, need to be practically intelligent in the sense that I have described. In what I called in §3.1 the paradigm case of dyadic rights and duties between two morally competent individuals, however, symmetry is restored. The reason for this is the obvious moral desirability of the two parties working things out together when doing so is apt and feasible.43 One reason they ought to do so is epistemic:  the right-​holder is likely to have a perspective on the relevant moral considerations that well complements the addressee’s. Conscientious fulfillment of the responsibility in question thus calls for hearing the right-​holder’s perspective. Another reason is that doing so is called for by due recognition of the other as a moral equal whose morally relevant interests are at stake (see Forst 2012).44 Respect for the other as a moral equal calls for hearing the other’s point of view, if the other can articulate it or if it can be expressed by a proxy or surrogate.45 A final reason is pragmatic. Working these things out together will help coordinate these two agents, getting them on the same page morally. This last reason is a small-​scale instance of the kind of moral coordination for which our discussion in §2.2 of Kant’s conception of the ethical community helped us see the need. 42.  In Pettit (1997), “domination” was understood as the capacity arbitrarily to interfere. While this language has proved troublesome and Pettit has since refined his view, this thought, duly qualified, fits our cases here. 43. As noted previously, the case of the right to be left alone illustrates why it may not be apt. 44. On this point, I also have learned a lot from an unpublished draft by Alon Harel and Yuval Eylon called “Rights and Deliberative Duties,” which fascinatingly discussed negotiations among counterparties, and from Hedahl (2013a). 45. On the question of proxies or surrogates for the holders of moral rights, see Sreenivasan (2010). Although Sreenivasan’s Complex Hybrid Theory lends itself particularly well to accounting for the role of such proxies and surrogates, the Specificatory Theory defended here can allow for them easily enough.

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Given this moral desirability of applying the Specificatory Theory symmetrically where it is apt and feasible, any unavoidable asymmetries in its application will mostly arise from cases involving right-​holders who are not morally competent individuals and who have no proxy or surrogate to speak for them. Various nonhuman animals might fall into this category. The idea that the Specificatory Theory is open to this possibility of our having duties to nonhuman animals, however, is an advantage, not a defect. This openness is not unlimited, for the Specificatory Theory presupposes that any bearer a dyadic right must independently be the bearer of a monadic right that can be addressed to the duty-​holder. Further work would be needed to settle which beings bear monadic rights. The second objection concedes that there may be room for the kind of discretion that the Specificatory Theory posits with regard to positive or imperfect duties, and may be easily admitted in the case of government officials, such as those charged with elaborating a set of employment security rights, but it denies that it characterizes all cases of dyadic moral rights. Promissory obligations, in particular, can seem quite sharp-​edged. To be sure, if the content of one’s promise was notably vague (“I’ll return your money in due course”), then it may leave the duty-​holder with some scope for reasonable discretion. But surely some promises are quite definite and specific (“I’ll return your $2,000 by wire transfer to your account no later than noon on the coming Sept. 1”).46 The scope for discretion to be reasonably exercised by the holder of a promissory duty is not limited to interpreting the content of the promise, however. It also will extend, for instance, to interpreting various potential undercutting reasons. To take a traditional case, suppose that Ariel has promised to return Billie’s pistol by a certain date, but that Ariel is worried about whether to do so, as Billie has been heard threatening violence against someone. Ariel might reasonably take these alleged threats to undercut Billie’s claim to get the pistol back, and might reasonably decide that returning it would be morally called for only if credibly assured that Billie would not immediately use it to murder someone. In this case, the potential undercutting reason is specific to the content of this promise; but the case illustrates the kind of room that will remain, even for promisors, for intelligent, conscientious specification of one’s special duties. (A similar undercutting reason would arise if I learn that you would use the $2,000 wired to you to hire a hit man.)

46. I am grateful to Kimberly Kessler Ferzan and Bennett Helm for convincing me of the inescapability of this point.

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The proviso on which Ariel settles is reasonable, but it is not the only reasonable proviso that might be framed. As a reasonable way of specifying an important undercutting reason, it may be taken as authoritatively setting a definite limit to Billie’s claims.47 Since any otherwise sharp duty is potentially undercut by other moral reasons, it seems that there will always be some room for authorized specification.

3.7 The Specificatory Theory Compared to the Will Theory The Specificatory Theory is a strong contender as a theory of dyadic rights and duties. Before leaving off assessing it, I  will briefly comment on its advantages compared to other theories of dyadic rights and duties. Raz’s Interest Theory and Wenar’s Kind-​Desire Theory, as I have argued, do not undertake to explain or defend the existence of correlative dyadic rights and duties. They instead either propose to ignore them (as Raz seems to), to reduce them away, or to take dyadic form for granted (as Wenar seems to). Accordingly, I will close this part of the discussion with a comparison between the Will Theory and the Specificatory Theory regarding some of the most discussed test cases in the literature on dyadic rights and duties.48 The Specificatory Theory adequately handles the delicate issue of third-​party beneficiaries and does at least as well as the Will Theory in accounting for the rights of those who are not morally competent individuals. The Specificatory Theory has a clear advantage with regard to inalienable rights. The issue of third-​party beneficiaries is usually raised as a problem for the Interest Theory. If Adrian promises Blaine to take Cameron out to a nice dinner, Cameron has an obvious interest in Adrian’s fulfilling the promise; but we would more naturally say that Adrian owes this promissory duty to Blaine, the promisee. To be sure, intuitions on this matter are not crystal clear. Some think that perhaps Adrian owes this duty to both Blaine and Cameron. Because the Specificatory Theory does not explicitly invoke any reference to interest, it does not generate any reason to depart from the common-​sense view that even in third-​party-​ beneficiary promises, where A promises B to do something for C, A’s duty runs in the first instance to B. Yet because the Specificatory Theory does not hold that all right-​holders must have the power to waive their rights (and perhaps other

47. Supporting this limited possibility of authoritative specification of rights does not commit me to the kind of specificationism about rights criticized by Thomson (1986, 37–​42). 48.  On the slight advantage that I  see the Specificatory Theory having over Sreenivasan’s Complex Hybrid Theory, see n. 37.

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powers of control), it leaves room for the common-​sense doubt about whether C is also the holder of a promissory right.49 As I  have repeatedly noted, the Specificatory Theory poses no barrier to recognizing that we have dyadic duties to morally noncompetent humans such as the severely cognitively disabled, as well as possibly to individuals of other species. The Will Theory perhaps can make room for this as far as is appropriate by invoking a role for proxies or surrogates, who would be empowered to waive the correlative rights and exercise the other powers of control that this theory takes to be definitive of dyadic rights. If the Specificatory Theory has an advantage, here, it is that it does not have to rely on this role for proxies or surrogates in order to establish the existence of such duties to morally noncompetent individuals. The Will Theory, with its emphasis on the power of waiver, seems sharply incompatible with allowing for the existence of inalienable dyadic rights. Hillel Steiner (2013), in defending the Will Theory, has gone so far as to deny the existence of inalienable rights. The Specificatory Theory, by contrast, has no problem whatsoever in allowing for the existence of inalienable dyadic rights. It does not build its account on a power of waiver. This difference is an important advantage of the Specificatory Theory over the Will Theory. To account for the input stage of the three-​stage account of moral innovation, it is not necessary to show that the Specificatory Theory suffices to account for all aspects of dyadic rights and duties. It is enough that it captures an important part of the moral phenomena. Even so, showing that the Specificatory Theory is a strong contender as a theory of dyadic rights and duties boosts the case for the possibility of authorized input arising from how individual duty-​holders, and sometimes pairs of individuals, whom we may now call “persons,” can work out together the content of the relevant duty.

3.8 The Input Stage In the general case, the Specificatory Theory implies that the holders of a duty arising from another’s specifically addressed right have, within certain ranges at least, the authority to determine, within reasonable (and perhaps quite tight) limits, what this duty calls upon them to do. In the paradigm case of dyadic rights and duties between two morally competent individuals, the theory implies that the parties related by a dyadic-​right/​dyadic-​duty pair—​that is, “the counterparties”—​have the authority to work this out together. In doing so, they can articulate a new candidate moral norm that, while not yet affecting anyone 49. I am grateful to Rowan Cruft for pointing out complexities in the Specificatory Theory’s implications regarding third-​party beneficiary promises.

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else’s rights, duties, or permissions, affects their own. When this happens, they have provided the kind of input assumed by my three-​stage account of moral authority. After attending to the issue of the unity of the moral community in the next chapter, I will, as I proceed with the remainder of my defense of this account of moral authority, limit my discussion to cases where the input arises in this paradigmatic way from roughly symmetrical interactions between two morally competent individuals. Such cases raise fewer worries about legitimacy than those in which only the duty-​holders specify their duties. Once having completed my defense of this possibility, however, I will return, in §C.3, to the possibility of explicitly extending the account to moral authority beyond the paradigmatic case to asymmetrical cases in which only the duty-​holder is morally competent—​including cases that may involve potential expansions of the set of individuals that count as persons. The Specificatory Theory implies that, within the relevant ranges, these parties have the moral power to settle some of the concrete content or implications of the duty in question, as part of their sincere efforts to fulfill the relevant responsibility. The reason that a kind of authority must be involved, rather than simply a freedom of interpretive judgment, is that such a determination, going forward, settles details about the rights and duties between the counterparties. Neither we nor the counterparties can know concretely how far this authority ranges; abstractly described, it will apply to issues with regard to which the moral considerations, antecedently applicable, leave some indeterminacy. If the relevant specifications are legitimately adopted, they will modify the concrete contours of the rights and duties of the counterparties in a morally authoritative way—​of the researchers and research participants in a case such as Dr. Jones’s, of the parents and children in the sort of family-​justice case I gave earlier in this chapter. These decisions will affect, at least in detail, what moral rights and duties these people have, if only by determining them (specifying them) in one way or another. I will not try to offer full criteria of legitimacy; but the legitimacy of the adoption of any new specification obviously will depend on two types of factors. It will depend on at least the duty-​holder’s—​or, in the paradigm case, the counterparties’—​conscientious effort to discern and assess the relevant moral considerations being reasonably adequate; and it will depend upon their being adequately respectful of, and responsive to, each other’s arguments and concerns. In this way, the Specificatory Theory of dyadic rights and duties, which well captures and explains this central range of the moral phenomena, underwrites the input stage of the three-​stage account. The focus at this stage is on pairs of people: counterparties who are related by dyadic rights and duties, the skeletal

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elements of the moral community. These counterparties, as I have argued, sometimes effectively have the authority to establish newly specified norms, not of the universal jurisdiction required of a moral norm, proper, but of a jurisdiction limited to the two of them. The subsequent stages of the three-​stage account will describe how the social process of adopting new moral norms can broaden this jurisdiction to cover the whole of the moral community. Before getting to those further stages, however, we will circle back to Thompson’s challenge, set out in §2.4. This problem, you will recall, is to account for how all persons can be united via one set of dyadic normative relations into a single moral community.

4

THE UNITY OF THE MORAL COMMUNITY

As we have just seen, a system of dyadic duties articulates a moral community in the engineer’s sense: it allocates discretionary power to individuals in a way that can give rise to new candidate norms. Dyadic duties thus underwrite the input stage of the process whereby (as I shall argue) the moral community can authoritatively put in place new or newly specified moral norms. This process cannot come to completion, however, unless the moral community can act in a unified way to ratify a new candidate norm; and the moral community cannot act in a unified way unless it is itself unified. Does the moral community exist as a unified entity? This question could be posed empirically. To such an empirical question, a rough-​ and-​ready, empirically informed answer might be that, after all, all people need to deal with each other in norm-​bound ways, in one way or another. As Rebecca Kukla (2014, 83) puts it, all humans seem to “get by” with one another. As we saw in §2.4, however, conceptual doubts, too, can be raised about the possible existence of a unified moral community. This is illustrated by Thompson’s challenge: How can all persons be united via one set of dyadic normative relations into a single moral community? We can easily grant that this or that local community can operate according to a system of norms; but what could put all persons into one system of dyadic relations, such that each of them can wrong or be wronged by any of the others? In this chapter, I  will argue that the Specificatory Theory of dyadic rights and duties introduced in §3.1 provides a satisfactory basis for addressing Thompson’s challenge. To establish this, I  will begin by arguing that the Specificatory Theory provides a way of avoiding the difficulties that trouble each of the potential responses to this challenge considered by Thompson: the Humean appeal to practices, the Aristotelian appeal to human nature, and the Kantian appeal to pure practical reason. As we saw in §2.4, the Humean appeal to practices is too tightly bound to a given locality to explain the unity of the moral community,

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the Aristotelian appeal to human nature is too focused on the nature of individuals to account at all for the dyadic duties that knit together the moral community, and the Kantian appeal to the structure of pure practical reason rests too heavily on unsupported metaphysical claims. A principal thesis of the previous chapter was that the Specificatory Theory well supports dyadic duties. Here, I will suggest that the Specificatory Theory also offers a kind of decentralization of moral authority that can overcome local limits and allow contingent ways of shaping the moral community to do some of the work of unifying it, thereby lessening some of the need to rely on a priori or metaphysical claims. It is obvious that, in important respects, the Specificatory Theory is not in the same league as Hume’s practice-​based account of moral norms, Aristotle’s grounding of the norms of virtue in human nature, or Kant’s grounding of moral necessity in pure practical reason. Each of these landmark philosophical views gives an account of what justifies moral norms. The Specificatory Theory offers no such account. Instead, it presumes that certain moral rights and duties exist and argues that when these arise in certain configurations, they take the form of dyadic rights and duties, held against or owed to particular people. Notice, however, that Thompson’s challenge does not concern the grounding of moral norms or claims. It asks what can possibly unite the moral community. An ultimate grounding might do that; but it is not the only kind of thing that could do that. After all, the challenge concerns, more specifically, what can unite the moral community when that is taken as having an anatomical basis of the kind set out in ­chapter 2; namely, in its system of dyadic rights and duties—​a unity that implies, as I have argued, that any person can wrong or be wronged by any other. The question about the unity of the moral community, so understood, is in the first instance a question about its structure, not about its basis. In addressing this question, we may—​as in §§3.3 and 3.4—​presume the existence of universally applicable monadic rights, answerable to underlying, morally significant concerns. The issue that we are focusing on here is how a dyadic system of rights and duties can be demonstrated to exist or can arise that unites all moral persons into one moral community. To answer this question, it actually will prove helpful to set aside the question of what ultimately grounds moral norms—​a question that, after all, may lack any informative general answer—​and to focus instead on how the system of dyadic rights and duties functions. Then we can ask, more pointedly, whether it can function in such a way as to well support the unity of the moral community. My answer to this last question will have two parts, each of which picks up on a different feature of the Specificatory Theory. The first part will highlight the way in which the Specificatory Theory paradigmatically takes duty-​holders to

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be charged, as intelligent beings, with carrying out their obligations reflectively. What I say in this part will explain how the Specificatory Theory can account for how disparate groups of intelligent beings can be knit together as participants in one system of moral norms. This first answer might suffice to convince some readers. As I noted in §3.1, however, the Specificatory Theory importantly leaves open the possibility that not all holders of dyadic rights—​and hence, not all members of the moral community—​must be intelligent beings. Taking this possibility into account requires a different response as to what can underwrite the unity of the moral community. At the end of c­ hapter 2, I described the moral community as “the open-​ended set of all individual persons who can wrong or can be wronged by one another.” Up to this point, I have not explained the reason for the qualifier “open-​ended.” Each part of my answer as to how the moral community can be unified will speak to this point. Prima facie, adding this qualifier makes the job of unifying the moral community into a single normative system harder, for it suggests that one is not even necessarily dealing with a fixed set of individuals; but it will turn out that the Specificatory Theory unifies by being open-​ended, both as to those intelligent beings with whom one can morally relate and as to the set of beings to which we owe moral duties.

4.1 Bringing Intelligent Beings Together Under One System of Norms The focus of this first part of the argument will be on interactions among intelligent agents—​that is, beings that can exercise the kind of conscientious discretion on which the Specificatory Theory builds. The trouble with grounding the unity of the moral community in social practices is that they are specific to a place and time. Michael Thompson dramatized this problem by reference to his imagined isomorphic practices of the ancient Lombards and the Schlombards, isolated from each other by the ramparts of the Alps. In discussing this example in §2.4, I  offered the real, though not isomorphic, cases of the various international boxing associations as a reminder of just how familiar it is for systems of norms to be individuated on the basis of their differing authoritative origins. The point of Thompson’s example was that even if the normative content of the two systems is isomorphic, they fail to unite people as being subjects of one set of norms if the authority of each system stems from a distinct social practice, whether that is institutionalized or not. One response to this problem is to reject this kind of local grounding altogether and to look for a universal basis for morality, such as human nature

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(or the human “function”:  Aristotle 1984, 1735:  N.E. 1098a7) or the idea of pure practical reason. I will come to these Aristotelian and Kantian possibilities shortly; but to set out how the Specificatory Theory can overcome the difficulties faced by the Humean approach, I propose not to leave Thompson’s Alpine scenario behind so brusquely. I will first treat this case of mutually isolated but isomorphic normative systems before turning to mutually isolated and disparate normative systems.

4.2 Effacing the Boundaries Between Distinct Practices Although the problem of the moral community’s unity that we are now addressing is a conceptual rather than simply a practical one, it is nonetheless a problem that—​for my broader account to be viable—​also must be capable of actually being solved on the ground, in the contingent course of history. Mine is an account of how the objective content of morality can grow or evolve in the course of history via a shift in actual practices, not an account of morality’s objective foundations, eternal or otherwise; accordingly, I cannot simply dismiss the terms in which Thompson’s challenge to the Humeans is posed. My account depends on the possibility of uniting the moral community’s practices into a single practice, the structure of which in turn can make it the case that each person can wrong or be wronged by any other person. Let us then pick up the story of Thompson’s Lombard and Schlombard, the Alpine denizens whose tribes have by some miracle evolved isomorphic languages and systems of private law. We can call our pair of agents Alduin and Schalduin. We shall maintain Thompson’s assumption that when they encounter one another, they have no reason not to think that they are members of different societies, since neither has delved into the law-​making processes of their tribe. As a result, “when they meet by chance in the Alps, they would both have reason to think that they are both (as each would put it) ‘Lombards’ and that they are, say, concluding a valid contract with this particular assemblage of song and dance. Again, though, it seems plain that they are not . . .” (Thompson 2004b, 362). The fact that their utterances to this effect seem to mesh, Thompson suggests, is an utter accident. I will not contest this claim. Instead, I will elaborate the story of Alduin and Schalduin. So long as we remain focused on matters that are already settled in the private-​ law systems of Lombardy and Schlombardy, this same point will apply. Things will turn out differently, however, if we shift our attention to a question that is unsettled in both the moral understandings of these two cultures and objectively, where the parties’ intelligence can exercise some sway. Since my argument for discretion arising in dyadic normative systems was developed specifically for the

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moral case, and since that is the case that ultimately interests me, I will take the case of an unsettled issue that, although arising in the context of a private-​law transaction (or apparent transaction), can be understood in moral, not merely legal, terms. Thus, I  also will suppose that, amazingly, the conventional moral practices and understandings in Lombardy and Schlombardy are, like their systems of private law and their languages, isomorphic. Suppose, then, that a hitherto unsettled issue of concealment arises in a real estate transaction.1 Schalduin wants to purchase a small dwelling from Alduin to use as a trading outpost. Since this is a big purchase for Schalduin, and since the housing stock in fifth-​century Lombardy is prone to serious defects, he is understandably concerned about there being something terribly wrong with the house. Alduin prides himself on his honesty, but knows that, in (Sch)lombardy, “people are not considered guilty of swindling when they place upon their placards, ‘For Sale: A Fine Villa, Well Built’, even when it is neither good nor properly built.”2 To reconcile his conflicting views about what he should do, Alduin arrives at the following distinction: “merely holding one’s peace about a thing does not constitute concealment, [rather,] concealment consists in trying for your own profit to keep others from finding out something that you know, when it is for their interest to know it” (Cicero 1975, 325–​327: III.xiii, para. 57). Although, as it happens, Cicero had articulated just such a distinction some centuries previously in Rome, word of it has not yet penetrated the moral or legal understandings of those in the Alpine tribal areas. Hence, it is a local novelty when Alduin generously says to Schalduin, “As you know, I have no duty, as a seller of real estate, not to tout the advantages of the property for sale, nor even to be forthcoming about its defects. It is up to you to inspect the property. Still, I think I do have a moral duty not to conceal from you any deal-​breaking information about the house of which I am aware. Should I do that, I would be open to serious moral criticism.”3 Upon thinking it over, Schalduin agrees that that this is a reasonable understanding of the seller’s moral duties. Guided by this (for them) novel moral understanding, they agree that if Alduin were to be found to have knowingly concealed a deal-​killing defect of the house, he would have to refund the purchase price, take the property back, and compensate Schalduin for any consequential damages. 1. Hence, I am supposing that these ancient tribes had not developed a legal doctrine of fraudulent concealment. 2. Cicero (1975, 325: III.xiii, para. 55). In drawing on Cicero here, I abstract from his effort to bring together the moral and the expedient. 3. For a probing philosophical discussion of deal-​breakers in another context, see Dougherty (2013).

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If what we cared about were the legal unity of Lombardy and Schlomardy, this example would be irrelevant. Presumably, forging a legal unity would require centralized political action, such as conquest or royal intermarriage—​plebiscites not yet being common in the Alps. As I have said, however, my elaboration of the example shifts our attention away from the legal validity of their contract. What we are interested in here is whether the Lombards and Schlomards can become united via a single system of dyadic moral duties. As I argued in §3.3, a system of dyadic moral duties arises when social practices exist that address moral responsibilities to specific individuals. When the example of Alduin and Schalduin begins, our assumption is, no such practices exist  knitting the two cultures together. The conscientious agreement at which the two of them arrive, however, begins to knit together their practices. How so? Alduin and Schalduin are not meeting as ambassadors to establish a treaty arrangement between their two cultures. By hypothesis, they have no reason even to be aware that they are members of different societies. Is there not, then, some mistake in their thought that they have together worked out what they morally ought to do in response to intentional concealment? If they thought that they were each simply deriving their position from their existing legal and moral practices, then that would be a mistake, for since these existing practices have distinct local homes, they would have arrived at only the semblance of an agreement. But that is not how they have proceeded. Instead, they simply reflect conscientiously on what they ought to do, on a matter that is not settled by the existing legal or moral practices or understandings of either culture. Further, their reasoning has made no essential reference to being a member of Lombardy or Schlombardy. Instead, it proceeds in the universal terms demanded by the concept of morality. Rather than negotiating a formal union between their tribes’ isomorphic practices, Alduin and Schalduin have stepped beyond the conventional forms of either of them and created the germ of a new practice that, at first, only the two of them share. Although the practices of these adjacent Alpine tribes have provided them considerable scaffolding on which to stand while conducting their reflections, they have transcended those limits by generating and reflectively endorsing a dialectical distinction new to these cultures. To be sure, their locally novel idea might not be imitated—​but, then again, it might be. And given that the two of them are actually members of the two different bordering tribes, there is a good chance that such imitation would straddle the Alps. If it did, then the background monadic right of homebuyers not to be defrauded would, by that practice, become specifically addressed to the sellers, who would come to be regarded as being responsible for avoiding an active concealment of defects. Once patterns of behavior in the two tribes have evolved to this point, the five-​step argument of §3.5—​or, more precisely, the first four steps of this

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argument—​takes hold to show that their members have moral powers over one another. If so then the Lombards and Schlombards would have become at least tenuously linked by a single dyadic system. This argument for how they can begin to become knit together highlights two features: first, the conscientious reflections of the pioneering participants, who in this case behave as if they were from the start participants in the same dyadic normative system, but are in fact initiating a shared system; and second, the way that moral powers arise from social practices addressing specific, morally important tasks—​definable in relation to monadic rights and duties—​to specific individuals. The case of Alduin and Schalduin can generalize to other cases of mutually isolated communities. The point of the example is that even though local practices, especially in the legal case, can seem to be sharply mutually distinct from one another, the conscientious reflections of moral agents can give rise to, as well as respond to, social practices that specifically address moral responsibilities to them. When this is done across borders, as in this example, the practice that arises can knit a broader group of people together. This possibility obviously does not assure the full unity of the moral community, but it does show that the sort of social practices important to the dyadic structure of morality can overcome a stubborn localism or epistemological relativism that would preclude the unity of the moral community. This kind of possibility assures, in at least a threshold way, the open-​endedness of the moral community. To go beyond this very special case, however, we should consider how things would go in the absence of isomorphism.

4.3 Knitting Together Morally Disagreeing Communities It may seem that the argument just given leans heavily on Thompson’s fanciful suggestion that two mutually isolated communities might have isomorphic normative practices. I agree that the assumption is fanciful—​though it well serves its purpose of highlighting the importance of authoritative local provenance in the case of many normative systems, such as legal ones. I deny, however, that lack of isomorphism is an obstacle to the argument for the unity of the moral community just given. The argument does depend upon the intelligent beings in question being able to communicate with one another. Perhaps there are intelligent beings from the Proxima Centauri system with whom we could not communicate because our forms of life are so different.4 I will postpone issues 4. Wittgenstein famously remarked, “If a lion could talk, we wouldn’t be able to understand it” (2009, 235e). We will never know whether Jeremy Irons’s voicing of Scar would have changed his mind.

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involving intelligent nonhumans until I come to the second part of my answer to Thompson’s challenge. My suggestion for how to extend the argument to cases of mutually isolated, nonisomorphic societies is simple. In the isomorphic case, the argument essentially depended on three features: (1) on the accident of mutual contact, (2) on the ability of Alduin and Schalduin to engage in a meaningful conversation about how they morally ought to act, and (3) on there being a contextually salient moral question that they reasonably regarded as initially unsettled. Since we are confining ourselves for now to the case of humans, there is no longer any worry about there being no opportunity for mutual contact. (Here, it is important that it is the conceptual possibility of a unified moral community that we are exploring, for actuality entails possibility.) Quite plausibly, many of the human cultures now in at least minimal contact with others lacked any indigenous understanding of the idea of morality. Perhaps many had tribalist understandings that sharply distinguished between what people owe to their tribemates and what, if anything, they owe to others, and hence did not support the kind of universality that I am here taking to be definitive of morality (cf. Nelson 1949). No matter, though, for once communication is established between cultures in which the idea of morality as we understand it is present, each will learn the other’s concepts. Pragmatic reasons then can be counted on to give individuals of the two cultures occasions on which to work out some reasonable interactions, such as intermarriages, in which neither treats the other simply as an outsider. In those cases, they naturally will be led to operate with the concept of morality. At this point in the argument, I am not going to assert that the possibility of mutual translation and understanding implies massive moral agreement between the two, hitherto mutually isolated communities.5 After all, Alduin and Schalduin are centrally seeking to work out reasonable ways to interact with each other concerning issues that they reasonably take to be morally unsettled, despite the isomorphism of legal practice and moral beliefs in their cultures. There, assuming that the issue being dealt with was an unsettled one was necessary

5. Sreenivasan (2001) rightly chided me for having been too hasty, in Part 5 of Richardson (1994), in inferring from Donald Davidson’s (1973–​1974) skepticism regarding the very idea of a conceptual scheme and his confidence in the translatability of anything we would rightly call “language” that intercultural moral dialogue will be meaningfully possible. If I were to remake that argument today, I would want to take on board Sreenivasan’s well-​taken point that mutual understanding often requires a lot of mutual cultural learning, much of which can be attained only by “going native.” (Since my discussion there concerned the reasoning of a single individual raised in two disparate cultures, the person in question was in a good position to benefit from such immersion.)

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simply to make their doubt about how to proceed seem realistic. Where there is substantive disagreement, there will be all the more occasion to worth through unsettled issues. Pioneering business partners—​or intimate partners—​coming from disparate cultures, lacking shared templates on many behavioral issues, will have all the more occasions for recognizing, rightly, that they need to work out what they should do. Sometimes this will simply be because they disagree, such as about whether a wife has a right to have employment outside the home; and sometimes it will be because their novel collaboration raises unprecedented issues, such as whether loyalty to tribal conceptions of community and of the sacred precludes cooperating with outsiders’ efforts to arrange genetic and other medical tests on the other members of the tribe (perhaps tests that have no prospect of improving their health prospects). It will not require the alert conscientiousness of an Alduin for these partners to locate moral issues that they will need to work through together. I conclude, then, that the argument of the previous subsection does not depend on the assumption of isomorphism. Whenever intelligent beings can understand each other and interact, they can exercise their conscientious discretion in ways that provide the germ of a new practice that knits the moral practices of their two cultures together. The Specificatory Theory of rights—​or the arguments that underlie it—​thus provides a robust reconception of the role of practices in bounding dyadic normative systems. Its way of conceiving of the role of practices in relation to moral normativity is less tied to the authority of local provenance than is the conception that here, following Thompson, we have been calling “Humean.” I have claimed that the Specificatory Theory also provides a basis for improving on the Aristotelian and Kantian accounts that Thompson considers. I will now explain how.

4.4 Looking Beyond Individual Human Nature to the Social There is a general reason why the Specificatory Theory is able to improve on the Aristotelian and Kantian answers to Thompson’s challenge. It lies already latent in the case of Alduin and Schalduin, which illustrates the possibility of reforming moral practice from the bottom up. Precisely because the Specificatory Theory does not put forward an ultimate foundation for morality, it is open to such a possibility. By contrast, the foundationalism of the Aristotelian and Kantian answers to Thompson’s challenge is at least in tension with bottom-​up reform.

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Further, because each of the Aristotelian and Kantian answers to what unites the moral community, thought of as structured by dyadic moral rights and duties, locates a foundation in the nature of an individual, each is doomed to implausibility. In the case of the Aristotelian view, the purported basis of the moral community is the biological essence of an individual human being. On its face, it is clear that, without supplementation by additional normative concepts, this basis fails to support the idea of dyadic moral relations. It is thus a nonstarter as an answer to Thompson’s challenge. The Kantian answer fares better. Like the Aristotelian answer, it looks to the nature of individuals, but instead of looking to the biological nature of the human individual, it looks to the rational nature of finite beings. If this Kantian conception of rational beings is understood thinly, it will apply to an overly broad set of entities—​including “ExxonMobil and the football team of Action, Arizona” (Thompson 2004b, 379–​380)—​and will leave in doubt whether they are all united by their thin rationality into one normative community. If we suppose, however, that the relevant conception of rational beings somehow picks out all and only those agents that it is reasonable and attractive to think of as being linked by the laws of the kingdom of ends discussed in §2.2, it may support dyadic moral relations. But then we will reasonably complain, with Thompson, about this “strange and wonderful metaphysics of reason” that is at odds with a “mild naturalism” (383).6 In contrast to the Aristotelian answer, the aspects of the Specificatory Theory to which this chapter’s argument has been appealing move beyond the nature of individual human beings to consider human social interaction and, more specifically, the social division of moral labor. Aristotle did think of human beings as “political animals” that do their work together (Aristotle 1929, 488a8–​11, 15). For instance, he considered the division of productive labor. The Nicomachean Ethics (I.1, 1094a10–​12) begins by warming us up for the idea of the highest good by having us consider a kind of hierarchy of arts, from bridle-​making to riding to the strategic deployment of the cavalry. By “the social division of moral labor,” however, I mean the kind of specialization of moral responsibility that arises only when moral rights are specifically addressed to certain agents. For the most part, Aristotle overlooks the need for this kind of specialization. When he treats the proper aims of the politician,

6.  In addition, we should complain that Kant’s own discussion of the “ethical community” (1998c), reconstructed in §2.2, suggests that the dyadic structure of the moral community cannot drop out of the a priori content of the moral law; rather, it must be historically achieved. This passage suggests that, as I have indicated, my own account is itself Kantian to an extent, albeit in a way quite different than the purely a prioristic Kantianism entertained by Thompson.

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he tends to describe them as being to assure the good of each and every citizen, not to create a system of dyadic rights that specifically addresses certain responsibilities to certain agents.7 The Specificatory Theory of rights, by contrast, presupposes and builds upon the importance of the social division of moral labor, characterizing dyadic duties and rights as arising from certain responsibilities specifically addressed to certain agents. The nature and functioning of societies are thus at least as important to the Specificatory Theory as the nature and functioning of the individual. This focus on the social organization of normative tasks is a better basis for grounding the moral community, understood as dyadically structured, than any biological or quasi-​biological account of the nature of a human individual. This same focus on the social forms underlying the specific addressing of rights helps get us beyond the implausible a priorism to which Kant’s metaphysics of reason is prone. According to the Specificatory Theory, dyadic duties and rights—​and hence the moral community—​arose only when societies historically attained some moral sophistication. The idea of abstract rights—​rights not specifically addressed—​needed to have been attained first. On top of that, some level of organization in societies’ “normative orders” was needed to assign or address specific moral responsibilities regarding those abstract rights to specific agents in a consistent and effective way (Forst and Günther 2011). By leaning on such contingent achievements, we may reduce the need to rely on metaphysical claims that are difficult to square with a mild naturalism. By the same token, of course, relying on contingent facts hinders the foundationalist ambitions of philosophy, but doing so does help the Specificatory Theory avoid the traps of the Aristotelian and Kantian answers that Thompson considered. In ­chapter  9, I  will further address the controversial question of whether nonderivative moral principles may have contingent grounds. Focusing our attention, so far, on interactions among intelligent beings, we have seen that the five-​step argument underlying the Specificatory Theory provides a basis for explaining how distinct and even disparate human practices can be knit together into one moral practice. I also have given a brief account of how the Specificatory Theory avoids the foundationalism that would block this kind of bottom-​up process, the individualism that prevents Thompson’s Aristotelian response from supporting a dyadically understood moral community, and the sort of a priorism that renders implausible any Kantian attempt to generate the idea of such moral community from the idea of a rational finite being. 7. See, e.g., Aristotle, Nicomachean Ethics (I.2, 1094b6–​7); Aristotle, Politics (VII.2, 1324a23–​ 25). It would at any rate be anachronistic to attribute to Aristotle a concern with dyadic rights and duties.

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These further considerations about the Aristotelian and Kantian responses reinforce the conclusion that we reached in discussing the Specificatory Theory’s response to the so-​called Humean, practice-​centered view; namely, that the Specificatory Theory well supports the idea of an open-​ended moral community that can be extended to include all intelligent beings who can communicate with one another. Yet since the Specificatory Theory importantly leaves open the possibility that some moral persons lack the relevant kind of intelligence (namely, the ability to exercise discretion in specifying moral rights or requirements), we should turn to the second part of the response to Thompson’s challenge, which considers this broader set of beings.

4.5 Beyond Interacting Intelligent Beings As we have seen, beings that can use their discretionary judgment to specify moral rights and duties in light of other aims and commitments—​“intelligent beings,” as I am here using that term—​can, so long as they can communicate with one another, become joined in a single moral community by means of interactions in which they have occasion to work out what they ought to do. Lacking this capacity to work things out, beings that lack this type of intelligence cannot be drawn into the moral community in this way. Yet I have defined the moral community as the open-​ended set of all individual persons who can wrong or can be wronged by one another; and the Specificatory Theory leaves open the possibility that among such persons are some who can be wronged because they hold dyadic rights, even though, because they lack the capacity to understand, let alone specify, their duties, they cannot wrong others. Humans with severe intellectual disabilities may well count as persons on this account, as may members of various other animal species. In this section, I suppose that the set of individual persons who can wrong or be wronged by one another includes beings that lack practical intelligence of the specified sort. If so, the full unity of the moral community cannot be achieved unless these beings can be united into the one set of dyadic moral relations. Since the argument given in the first part of my answer to Thompson’s challenge does not touch this question, some other argument is needed. My argument in this second part of the answer will build upon the first part. Given the commitments of the Specificatory Theory, this is only appropriate. The Specificatory Theory implies that a system of dyadic rights cannot exist unless there are specific intelligent agents to whom some monadic right is specifically addressed. For this reason, while it is conceivable that the moral community could consist solely of intelligent beings linked via dyadic moral relations, it is not conceivable that it could consist solely of nonintelligent beings so linked.

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My argument will be that nonintelligent beings can enter the moral community via the content of the moral commitments of the intelligent beings who are specifying their rights. This argument may sound reminiscent of Kant’s position that we have duties regarding other animals, but not duties to them; and so it is, in giving a kind of conceptual primacy—​as just stated—​to the group of intelligent beings. Notice, however, that the possibility that the Specificatory Theory leaves open, and that I am for present purposes assuming is actualized, is that we have duties to other animals and to severely cognitively disabled humans, not merely regarding them. It will be useful to confront at the outset a suspicion that this argument will prove too much. There are few bounds on the scope of our conscientious reflection. We think about the scope and content of our possible duties to unborn future generations, to other animals, to plants, to ecosystems, and to the Earth itself. If something being the object of people’s conscientious specifications of their duties regarding it were enough to make that thing into a person, then almost anything could be a person. Perhaps I  have a duty not to gratuitously destroy beautiful stalactites. If my sitting in a cave pondering how to specify the idea of gratuitousness for this purpose implies that the stalactites may be wronged by my actions, and hence are persons, then the argument indeed proves too much. This worry ignores a further condition invoked by the Specificatory Theory, as explained in the last chapter—​namely, that the being in question must be the bearer of monadic rights. These I illustrated in §3.3 by referring to Sreenivasan’s “deontological rights,” normative elements that shield the bearer’s interests, to some degree, from incursions grounded by impartial moral reasons. Rights of this sort have commonly been invoked as standing up against the conclusions of utilitarian aggregation, for instance. Stalactites cannot be bearers of monadic rights, so interpreted, because they have no interests. I doubt that they are bearers of monadic rights at all. If they are not, then, given this further assumption, no amount of conscientious reflection about them will suffice to imply that the Specificatory Theory classes them as persons. By contrast, it is neither idle nor implausible to suppose that severely cognitively disabled humans and members of various other species have monadic rights.8 Suppose that they do have monadic moral rights, of roughly the deontological sort Sreenivasan describes. Suppose, further, that these rights are not merely given lip service, but rather are taken seriously in how we structure our

8. A good recent discussion of the case of other animals is found in Beauchamp (2011). The question of the rights of severely cognitively disabled humans has been somewhat obscured in the recent literature by the relative unpopularity of the idea of rights among those defending their moral status; but see, for example, Nussbaum (2006, chap. 2).

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practices. That will mean, among other things, that specific individuals—​such as medical researchers working with laboratory animals or democratic officials in charge of seeing to it that all citizens are fairly represented (see Nussbaum 2010a)—​are assigned certain responsibilities with regard to the fulfillment of these rights. If so, some of these monadic rights will have become addressed specifically to certain individuals. Once the realization of these monadic rights has reached this level, the specific addressees’ conscientious reflections about how to treat the severely cognitively disabled or other animals—​in any of the myriad areas where moral issues about how to treat them remain unsettled—​will have the effect that the objector mistakenly feared would occur with the stalactites:  the Specificatory Theory will apply, converting these monadic rights to dyadic ones. And that will have the effect—​hardly an absurd one—​of implying that these additional beings are members of the moral community and are persons, as that term is here defined. Defenders of the rights of the severely cognitively disabled or of other animals may object that this mode of including them in the moral community is unsatisfactory. As Martha Nussbaum (2006, 138) has put the point in criticizing common accounts of the moral status of the severely cognitively disabled, “[t]‌hey are taken into account because some member of the ‘we’ happens to care about their interests, not because they are citizens with rights, equal ends in themselves.” Yet this complaint does not apply with full force to the present view. It is true that these entities are included in the community of moral persons only because they are taken into account in the deliberations of some paradigmatic moral persons. Their being so taken into account, however, does not imply that these deliberators merely happen to care about these other beings. On the contrary, these deliberators are likely to have deep moral commitments implying that they ought to recognize that these beings have monadic moral rights—​ones that they ought to respect. Further, the idea that these beings actually have these monadic rights is here presupposed for the Specificatory Theory to become applicable. I have not said what might ground these rights: any effort to do that is well beyond the scope of my efforts here. The supposition of the present discussion, however, is that these monadic rights exist independent of anyone’s deliberations. What does depend upon people taking up these issues in deliberation is the conversion of these monadic rights into dyadic ones, and thus the membership of these entities in the moral community as beings that can be wronged. But it needs to be remembered that monadic moral rights would suffice to imply that there are certain ways of treating the severely cognitively disabled and certain ways of treating members of other species that are morally wrong, whether or not they are counted as persons who can be wronged. The reflective specification of duties arising from the ways that these monadic rights are specifically addressed

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to individuals merely makes this last step, that of implying that they are persons who can be wronged. This final step is not even a discretionary one. The issues of discretion that activate the Specificatory Theory are unsettled issues about how to respect these beings’ monadic rights. Such questions will arise willy-​nilly. Conscientious reflection that answers this kind of question is what deploys the kind of moral power explaining that the deliberator’s duty is directed to the entity in question. Supposing that the severely cognitively disabled and members of certain other species enjoy monadic rights specifically addressed to certain persons, and that the Specificatory Theory is correct, then the inclusion of the severely cognitively disabled and members of these other species in the moral community as moral persons is effectively assured, independent of which specific discretionary choices are made. Since this account of how beings lacking practical intelligence can become members of the moral community depends on moral content that is exogenous to the Specificatory Theory, the idea of the moral community supported by that theory is fully open-​ended, in that it can pick up on any monadic moral duties. The case of possibly intelligent aliens from Proxima Centauri or elsewhere will illustrate this fact. I  postponed discussing that case in the last section because my argument there depended on mutual communication; and, generations of science-​fiction writing notwithstanding, we have serious reason to expect that we would have considerable difficulty communicating with such aliens. Perhaps our translators could not get a foothold with them, making joint deliberation impossible. Even so, we might discern that the grounds of monadic moral rights, whatever they are, apply to them, perhaps in similar ways to those that arise in the case of members of other species. For example, we might be able to discern that they feel pain upon injury that at least temporarily incapacitates them, and that they have a sense of their temporally extended identities that seems to cause them to experience future-​directed fears. These fears, in turn, might express themselves in their behavior. So long as we humans were not preoccupied with fighting epic battles with these aliens for the control of Earth, we might develop practices that specifically addressed to certain humans—​such as a newly created cadre of special police or goodwill ambassadors—​some responsibilities for the aliens’ moral rights. In such circumstances, the Specificatory Theory again would imply that the reflective moral discretion that will inevitably arise in the deliberations of these humans as they undertake their novel tasks would have the results that their duties regarding these aliens become duties to these aliens. To this kind of possibility, the moral community, dyadically understood, also remains open.

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4.6 How All Persons Can Be United in a Single Moral Community The answer to Thompson’s challenge that I  have defended in this chapter has unfolded in two layers. The first layer addresses the worry that distinct human communities might fail to join in a single moral community, because of either mutual isolation or serious moral disagreement. Taking the case of isolation first, I argued that as soon as there is contact, opportunities for mutual undertakings between pairs of people will arise; and with these, occasions for interactively exercising discretionary judgments that speak to lacunae in the understandings of each pair’s cultures. Given its lack of foundationalist commitments, the Specificatory Theory supports the claim that what they then work out in such cases can plant the seeds of new, cross-​cultural practices and understandings, which specifically address moral responsibilities to certain individuals in a new way. If such a practice takes hold, this does not yet generate a new moral norm, but it does provide a cross-​cultural basis for the exercise of moral powers of discretion. These create the dyadic nexus that links these two, hitherto separate communities into a single moral community. It may not yet be the moral community, as there may remain communities that have yet to be knit together with others. The point, however, is that this account of the moral community generates no obstacles to this process working its way through, in the manner posed by the other answers to Thompson’s challenge, and maintains an openness to this process occurring in any case involving separate human communities. Since approximately all human communities now are in contact with one another, there are no logistical obstacles to this process completing itself.9 Moral disagreement may seem to pose an obstacle, but I have argued that the opposite is the case. Where moral disagreement arises—​say, from cultural differences—​there is all the more that parties need to work out together then they interact, and thus all the more scope for the argument underlying the Specificatory Theory to get traction. While this first layer of the argument addresses the problem of the possible Balkanization of the moral community, the second layer takes up the issue of its extension to all who, on a sound understanding, ought to count as persons—​ including some, such as humans with severe cognitive disabilities and members of certain other species, who lack the kind of practical intelligence on which the Specificatory Theory centrally relies. I  have argued that the key limitation on 9. The isolation of a relatively few uncontacted peoples in the forests of South America, Central America, and New Guinea constitutes the exception. The most important constraints on contact with them are moral, not logistical, as we have some reason to respect their isolation.

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whether a being can count as a person in the sense defined here does not arise from the idea of practical intelligence, but instead hinges on whether that being is the bearer of monadic moral rights. This monadic layer of morality is independent of the dyadic idea of the moral community. The range of beings that are bearers of monadic moral rights will need to be settled on grounds that are independent of the view developed here. If we can presume that a set of beings bear monadic rights, the explanation of how the moral community can be extended to include them is simple. If a being is a bearer of monadic moral rights, and if practices have developed that specifically address responsibilities regarding such a being to certain intelligent individuals—​ as they should do in order to take these monadic rights seriously—​then those individuals naturally will be led to exercise discretionary moral judgment about how best to fulfill these responsibilities. When they do, this will imply, per the Specificatory Theory, that the beings whose rights are in question are members of the dyadically understood moral community:  they are beings that can be wronged. That is, on the definition put forward in §2.1, they are persons. A similar process of extension can work, I have suggested, to include in the moral community beings from another planet that may be intelligent, but with whom we cannot as yet communicate. To treat this as a problem of extension is to accept an Earth-​centered outlook. Theoretically, the two kinds of problems that I have separated could intersect: We could worry about the present lack of communication between intelligent beings found on Earth and hypothetical intelligent beings in the Proxima Centauri system (or who knows where else). Not knowing whether there are intelligent beings elsewhere, let alone what they might be like, however, I beg leave not to address this problem. That we can speak thereof does not mean that we must. The answer that I have given to Thompson’s challenge about what can unite all persons as members of a single, dyadic moral system suffices, I think, to deal with the kinds of problems of nonintegration that we now face, and remains sufficiently open-​ended to avoid foreclosing possible answers to those we cannot yet adequately imagine.

5

INTRODUCING NEW MORAL NORMS

We must now move from particular moral authority, binding only one or two individuals, to the kind of general moral authority that might establish a new moral norm. This chapter incorporates the foregoing account of particular moral authority into the three-​stage account of moral authority previewed in §I.4. We begin with the hypothesis that the particular moral innovations defended in the preceding chapters can represent the initial, input stage of a broader process of generating new moral norms. The second stage involves a de facto selection among rival candidate innovations and a convergence of individuals sufficient to establish a new social practice. Since convergence on one norm practically implies that a de facto selection has taken place, I will simply call this second stage “the convergence stage.” The third stage is that of the moral community’s reflective ratification of this de facto result. At this point in the exposition, it will not be possible to set out a full account of the convergence stage. Fully characterizing the ratification stage, the task of ­chapter 7, must await the next chapter’s account of joint moral reasoning, on which it depends. Accordingly, the principal constructive task left for this chapter is to explain the selection and convergence elements. After that has been done, the chapter will address a series of objections: that there is no such thing as moral authority; that the idea of moral authority clashes with the according importance to the de facto status quo and with due recognition of the moral importance of individual autonomy; that moral authority conceived along these lines cannot introduce new norms; and that, if it did introduce these new norms, it would necessarily lack the objectivity that, I have assumed, is definitive of true moral norms. In the preceding chapters, I have argued that the moral community is bound together by a web of directed duties and corresponding claim-​rights, which devolve onto the parties some discretion to specify those rights and duties for their own particular cases. This discretion could be seen as a minor type of moral authority, applying only to

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these two people. This possibility is important to my overall account, for it does allow for some decentered movement of the parts of the moral community—​that is, some shifting of the way things permissibly work out with regard to certain special moral responsibilities. This movement at the particular level, however, remains relatively small scale. It allows that some gaps may be filled in, likely in different ways by different pairs of persons. Such innovating moves are not merely small scale, but also inherently unfulfilled. That is because they express moral judgments that—​as I  noted in §I.1—​are inherently implicitly universal but that have attained no universal jurisdiction. The moral community is inclusive of all persons, and moral norms purport to be valid for, and to bind, all persons.1 This universality does not imply that it is possible to arrive at any useful and true general moral judgments. It does imply, however, that when a pair of counterparties works out an adequate further specification of the special moral duty that one of them holds toward the other, they implicitly judge that this resolution would be appropriate for others similarly situated. Insofar, then, as the authoritative reach of this judgment remains restricted to the two parties who arrived at it, it remains unfulfilled in an interesting sense. Lacking universal effect on people’s rights and duties, it cannot be counted as authoritatively stating a moral principle or norm. The first question, then, is how it is possible, as I claim it is, to build from this sort of particular moral innovation toward the authoritative introduction of new moral norms. Another question that arises is how the particular authority of a pair of counterparties, defended in the preceding chapters, contributes to the three-​ stage account of general moral authority.2 Why not be more accepting of novel input from whatever source, and count on convergence and ratification to build therefrom a new moral norm? If the account works at all, why can it not work with a wider range of input? I will answer this question most fully in the course of explaining how this account is compatible with recognizing and respecting the autonomy of moral persons (i.e., of those moral persons capable of being duty-​holders as well as right-​holders). A basic answer emerges, however, from considering how the second, convergence stage, connects to the first.

1. Here, I leave out the qualifier “rational.” In §2.1, I glossed the term “person” in terms of membership in the web of directed duties and rights. For our purposes, this gives the term “person” a sufficiently determinate meaning while maintaining a desirable openness. 2. I am grateful to Daniel Threet for pressing this question.

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5.1 Selection and Convergence In characterizing the stage of selecting among candidate moral innovations and converging upon one of them, we need first to attend a little further to what this second stage takes as input. The paradigm case of exercising particular moral authority described in the previous chapters centers on the sincere and conscientious efforts of two people, bound together by a special responsibility that one of them has to the other, to work out more specifically how the one who holds this special duty ought to act in carrying out this special responsibility.3 So far, this sincerity and conscientiousness condition may have seemed mainly to rule out one of these parties setting out to manipulate the other or scheming strategically to obtain a result favorable to his or her self-​interest. It does rule out these attitudes. As we now turn to how this dyadic interaction might contribute to a broader social process of generating new moral norms, however, we should notice another feature of this condition. It implies also that, as far as the parties are aware, they are each being moved by the merits of the issue and are not capitulating to broader social necessities, mindless peer pressure, or outside threats. Since dire social necessity, sheer peer pressure, and coercion are pervasive features of social life, this aspect of the sincerity and conscientiousness condition is hardly trivial. It is not, however, utopian. Rather, at each moment at which it applies, it can rest on the fruit of previous efforts at articulating moral obligations. We must recognize the significant social achievement involved in affording a pair of individuals, bound together by a special obligation, the moral freedom jointly to work out its details. Consider two of §I.2’s examples. In the future case of families working out grandparental obligations, this freedom is a substantive and widely recognized one. Most societies acknowledge and protect some degree of freedom for families to work out how to interpret the special obligations their members owe to one another. In a case like that of my fictional Dr. Jones, this freedom would seem to be the result of a complex interaction of many factors. One was surely the novelty of the issue—​before the use of placebo controls was flagged as problematic, who had any view about it? Another is that this is an issue that arises for duty-​holders who are professionals whose status as physicians is protected in guildlike fashion. A third is that for some decades prior to this issue having arisen, the “ethics” of the conduct of physician-​researchers had been governed by legal regulations that, as it happened, did not speak to this

3. As I indicated in §3.8, my argument for the moral authority of the moral community will focus on this paradigm case, returning only in §C.3 to the more general case, in which the counterparties working things out together is either morally inapt for substantive reasons or impossible because the right-​holder is not a morally competent individual.

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issue. Thus, in this case as well, the freedom that such individuals could feel that they had to work out, deliberatively, what they ought to do can be seen as the product of earlier phases of articulating the moral community. The sincerity and conscientiousness condition thus goes some way toward appropriately delimiting the kind of input that might serve as the initial step in a broader social process of generating new moral norms. Input—​that is, novel ways of interpreting moral responsibilities—​might well arise from cynical manipulation, bowing to social necessities, mindlessly going along with peer pressure, or responding to coercive threats. If what we were concerned with was epistemic uncertainty about what morality really requires, the fact that a new moral idea arose from such a source would not necessarily disqualify it from consideration. All that would matter would be whether that new idea represented a correct approach to the moral issue at hand. Despite its tainted source, it very well might. Recall, though, that what we are interested in here is indeterminacy-​reducing moral progress: progress on matters as to which there is not, antecedently, a determinate moral answer. One cannot objectively reduce moral indeterminacy without being morally authorized to do so. In the foregoing chapters, I have built the case that, in the first instance, holders of special moral responsibilities are morally authorized further to specify these responsibilities and, ideally, are called upon to do so by working this out with the person to whom the responsibility is owed. The intuitive case that morality objectively authorizes this specificatory activity is that it has, as a practical matter, rested an important moral concern in the hands of the individuals who hold the special responsibilities in question and—​consistently with morality’s emphasis on the autonomy of competent moral persons—​called upon these individuals to discharge these responsibilities intelligently rather than in a literal-​minded or mechanical way. One way to elaborate this intuitive case is to posit the existence of a higher-​order, empowering norm of morality that authorizes this use of intelligent discretion.4 Supposing that this higher-​order norm includes a sincerity and conscientiousness condition coheres both with the substantive structure of first-​order morality, which lays out various special obligations, and with a core moral value. Inversely, it is hard to imagine how a higher-​order, empowering norm that authorized input via strategic manipulation, social exigency, thoughtless peer pressure, or coercion could cohere with the rest of morality.5

4. For further detail, see §9.2. 5. That a norm is higher-​order in the sense that it refers to norms of a lower order does not imply that it stands higher in the order of justification.

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Some sincere and conscientious efforts to work out specifications of what ought to be done will turn out to violate what morality determinately requires. These efforts fail to be authoritative.6 In flying against what morality determinately requires, they necessarily fail to fill in an indeterminacy that morality objectively left. In imagining how moral authority may be exercised, therefore, we must set aside such mistakes. In making the case for the possibility of moral authority, we do not need to know how to filter them out; rather, we need to have confidence that some of these efforts will not violate what morality determinately requires. It was a principal burden of the foregoing chapters to provide grounds for such confidence. Some of these sincere and conscientious efforts will result in the exercise of moral authority affecting the two particular persons involved. We should now think of such results as providing the input for the convergence stage. As noted above, the process of de facto convergence is likely to require also a de facto selection from among a diversity of incompatible and divergent individual ways of working out how to address a given special responsibility in certain circumstances. With or without such a selection having taken place, what matters is that there arises sufficient de facto convergence on a new specification for it to be correct to say that acting in accordance with the judgment converged upon is globally a norm of behavior. There are three points to note about what is required for this kind of social fact to obtain. First, it is a familiar point about social norms that their existence does not imply universal conformity to their requirements. Here are three principles that seem to be global norms of behavior: • One ought to keep one’s promises. • One ought not engage in assault or battery. • One ought not drink and drive.

The fact that many people break their promises, engage in assault and battery, and drink and drive does not conflict with the assertion that these are global norms. Second, the existence of a social norm does not imply that it does not conflict with other social norms. That even moral principles are apt to conflict is, after all, the principal basis of my argument, in §I.3, for the existence of the kind of moral indeterminacy that authoritative specification can reduce. Thus, from the

6.  Raz famously takes the view that “there is no point in having authorities unless their determinations are binding even if mistaken (though some mistakes may disqualify them)” (1986, 47; cf. 48n). In concerning ourselves with moral authority, we are not concerned with “having authorities”—​that is, with establishing locatable, datable institutions with wide-​ ranging authority.

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point of view of our inquiry here, such conflicts among norms and the resulting occasions for further specification are only to be expected. Finally, in attributing a norm to a society—​again, now, as a social fact about the society—​some conceptual tolerance for the existence of individuals who actually disavow the norm in question is apt. It is an interesting question as to how this conceptual tolerance varies with how finely grained a view of the society one takes. For instance, arguably, in the contemporary United States, to discriminate on the basis of race in hiring decisions is to violate a social norm. It is here taken to be immoral, as well as illegal. In some narrow U.S. subcultures, however, such as that of white supremacist groups, this moral norm would be disavowed.7 Whether this fact falsifies the claim that this is a social norm in the United States may depend upon the context in which this empirical claim is being put to work—​that is, on the purposes for which the question about its acceptance was raised. In the context of the convergence stage, where behavioral regularities of a certain kind, not reflective attitudes, are what matters, there is relatively little pressure for a strictly fine-​grained standard. The function of this stage is to bring a given candidate moral innovation to the fore. There will be greater pressure for some connection with each individual’s views at the ratification stage. My account of the convergence stage lays down very few strictures as to how it might come about that a given moral innovation emerges as a de facto global norm. Consider this possibility in relation to two of the examples offered in §I.2. If any such norm emerges with regard to grandparental obligations, this will have to be because of widespread experiments in living, efforts at imitating those of one’s acquaintances whose arrangements seem to work well and avoiding what one takes to be the ill-​chosen arrangements of others, and the slow emergence of a preferred solution. Although the assistance of a facilitating institution, such as that provided by the Council for International Organizations of Medical Sciences (CIOMS) for the issue of the standard of care to be afforded to participants in medical research, can speed up this kind of process, the process involved will not be fundamentally different. The strictures that I do need to lay down for the convergence stage pertain to its legitimacy. Whereas it is a sadly familiar feature of human history that political or legal authority can be illegitimately exercised, once we shift our focus to what it takes to introduce a new, objective moral norm that reduces morality’s 7. By “disavowing a norm,” I mean “asserting that it is false or refusing to assert that it is true.” This expression of one’s moral beliefs has no direct bearing on whether one believes that the norm in question is a social norm in one’s society. Perhaps, as suggested by Bicchieri and Chavez (2010, 161), the fact that the individuals in a society believe a norm to exist is a necessary condition for the norm to exist in the society—​though see §7.1, where I argue that it is not necessary that such a belief be held by all individuals.

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indeterminacy, we have moved to conceptual territory wherein the idea of an illegitimate exercise of authority is an oxymoron. The core legitimacy conditions for moral authority derive from fundamental moral principles and precepts, such as those expressing the fundamental moral equality of persons. Accordingly, the legitimacy conditions on any authoritative moral innovation do not merely qualify it for escaping certain kinds of criticism; they also are constitutive for its counting as authoritative. Thus, while it is not necessary to think of all the individuals interacting in the convergence stage as sincerely and conscientiously trying to get things right, it is necessary to assume that the outcome is not the result of coercion or of manipulation by those who hold disproportionate power. In order to model how such social convergence might come about without coercion or manipulation by dominant social forces, some may be tempted to reach for the idea of social conventions. As the idea of convention has been developed using the tools of game theory, however, and in the wake of David Lewis’s seminal contribution (Lewis 1969), it imports assumptions about rationality and common awareness that are unnecessarily demanding in the present context. Lewis’s account of convention aimed to model the rationality of an agreed way to resolve a pure coordination game, in which there are two equally good solutions, but reaching them depends upon coordinating two or more parties that must decide independently, perhaps after communicating. Will they drive on the right, or on the left? Lewis embraced the fact that what a rational individual will do in such a coordination game will depend on what she expects that the other expects that she expects that the other expects [etc.] . . . she will do. When I return to this issue when discussing the ratification stage in ­chapter 7, I will consider whether the ratification stage, which has serious normative work to do, ought to invoke a so-​called common knowledge condition along these lines. For the purposes of thinking about the convergence stage, however, it is not necessary to cast the result as rationally supportable in the sense that this condition is needed to imply. It would be enough if de facto global convergence comes about “just by luck,” to use Lewis’s phrase (1969, 24). In fact, however, we need not fall back on the idea of luck. Those not satisfied by the combination of elements already mentioned—​individual experimentation, differential success, and imitation of those deemed successful—​could turn to more rigorous accounts of how rationally unsteered processes can yield rationally endorsable results. The old metaphor for this phenomenon is Adam Smith’s invisible hand. Newer pictures of how rationally endorsable results can be produced by unsteered processes have come from evolutionary game theory, which aims to show “how complex economic and social structure can emerge from the simple, uncoordinated actions of many individuals” (Young 1998, 144). One important payoff of this kind of evolutionary model of the repeated, uncoordinated, and

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strategic interaction of individuals is that it can show “how high-​rationality solution concepts in game theory,” such as that of a Nash equilibrium, “can emerge in a world populated by low-​rationality agents” (Young 1998, 144). By whatever route it is arrived at, the upshot of the convergence stage is that a candidate moral norm has become, de facto, a global norm. Further, for it to truly become an objective, moral norm, it would need to be ratified. I will come to this third stage in due course. For the remainder of this chapter, however, I will turn to a series of objections to the possibility of moral authority.

5.2 The Very Idea of Moral Authority Bernard Gert (2005, 12) well expressed what is, I think, a common judgment, in writing that “there are no moral authorities.” His grounds for this, too, were arguments that I  think many share. One of these arguments concerned the question of who might count as a moral authority. I will return to that issue at the close of this section. His other principal argument drew on the assumption that morality is essentially public: “[N]‌o one has some special knowledge of morality not available to others, for everyone who is subject to moral judgment must know what it prohibits, requires, discourages, encourages, and allows” (Gert 2005, 11). My defense of moral authority, which crucially builds from the account of particular moral authority developed in the preceding chapters, is not grounded in claims about differential moral expertise. Nonetheless, I think that some degree of differential moral knowledge arises from conscientiously and sincerely pursuing one’s special responsibilities. Accordingly, rather than simply setting aside Gert’s argument from publicity as irrelevant to my account, I will seek to rebut it. Taken literally, Gert’s publicity assumption rules out the possibility of moral ignorance (culpable or otherwise). So read, it goes too far. More plausibly, the assumption would hold that people must know core facts about what morality favors and disfavors and about what it prohibits, requires, and permits. Interpreting the publicity assumption this way would reconcile it not only with general facts about moral ignorance, but also with the picture of an articulated moral community laid out and defended in ­chapters 3 and 4. In this picture—​bracketing, for the moment, the issue of moral authority—​moral requirements, prohibitions, and permissions should be seen as complexly ramified in ways that specify various different special responsibilities. We would not generally expect someone who is not a soldier to have concrete insight into the moral requirements applying to urban combat with an unjust, nonnational enemy capable of blending in with noncombatant residents. Likewise, we would not generally expect someone who is not a physician or nurse, or who has not been through the experience of a loved

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one’s death, to have anything but a rough insight into the moral considerations bearing on end-​of-​life care.8 In a dialectical back-​and-​forth that is, again I  think, not uncommon, Gert offers a concession in this direction—​and then pulls back from it. He concedes that “some people are better at dealing with moral problems than others, partly due to their training and experience, and partly due to their intelligence and good judgment” (2005, 12). Here, in emphasizing the moral division of labor that helps articulate the moral community, I  am appealing only to the first of these two reasons.9 I would add that special expertise relevant as input into the broader process of generating authoritative moral norms is most likely to arise from the special responsibilities that people become morally charged with and the special rights that people become morally endowed with. Someone charged with special moral responsibility for, say, raising a child or making reparations for a grievous past wrong not only has a special reason to care about the child or the reparation, but also a reason to deliberate carefully about how best to discharge this responsibility. Of course, just because someone has reason to develop special expertise and to deliberate carefully does not imply that he or she will do so. Through laziness, negligence, or self-​centeredness, all too many medical researchers, parents, and even friends end up ignoring the reasons that they have to pay special attention to their trial participants, children, or friends.10 In my account of the particular moral authority exercised at the input stage, this authority is limited to those who approach their deliberations in a sincere and conscientious way. While some of the relevant expertise developed by those sincerely and conscientiously attempting to work out what actions certain special responsibilities call for will pertain to causal issues about how to promote the special concerns in question, this is of merely peripheral interest. More relevant to the current discussion is another kind of expertise that they also will develop. Through trial and error, they may develop a good sense of what counts as a reasonable specification of the applicable principles. I am not, at this point, presuming that they will agree; indeed, correlative duty-​holders and right-​holders will have some built-​in incentive to disagree on the detailed specification of the relevant moral material.

8.  For a moving exploration of the complex moral considerations involved in facing a life-​ threatening illness, see Misak (2008). 9. Chapter 3’s assumption that morality addresses responsibilities to individuals as intelligent beings is a moral ideal, not a factual claim about these individuals’ intelligence. 10. Focusing on the case of parents, Estlund (2008, 261) has cited some depressing evidence of parental ignorance about their children, compared to what we might hope for and compared to the knowledge that professional experts have.

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Yet each also will have a good basis, in their self-​knowledge of their concerns and in their experience, for setting aside some specifications as simply silly or as nonstarters. Gert, as I  say, concedes that some have morally relevant special skills and experience. The way that he pulls back from this concession is revealing and helps explain why many find the claim that there are moral authorities jarring. “Unfortunately,” he notes, “some people, including some philosophers, have taken the title of ‘ethicist’ as if they were experts concerning moral decisions in fields such as business or medicine in the same way that chemists are experts in chemistry” (2005, 12). In this passage, it becomes clear that the real onus of Gert’s complaint is directed against philosophers who claim special moral expertise. Consonant with the idea of an articulated moral community, my approach actually sides with Gert on this, attributing the important moral expertise to businesspeople, doctors, and other holders of special moral responsibilities, rather than to philosophers. I conclude that, sensibly interpreted, the publicity requirements that apply to morality do not preclude the possibility of moral expertise as a factor justifying the kind of authority that goes with having special moral responsibilities or being in a directed moral relationship with someone.11 Recall, however, that the authority to which my account appeals is constitutive, not epistemic, as it is, by hypothesis, exercised within zones of objective indeterminacy. It hence does not essentially rest on any claims about reliability. Even so, the plausibility and attractiveness of the account can be bolstered on the basis of a kind of reliability claim. What any relevant moral expertise usefully tends to justify is deference to conscientious judgment, not as likely being correct, but as likely being not incorrect: as being relatively unlikely to stray outside the zone of objective indeterminacy.12 Through the process of convergence, it is quite possible some are not persistently aware of the resulting specifications of certain moral rights, duties, or permissions, which do not arise in their lives. It remains important for my overall account, though, as I shall explore in depth in ­chapter 7, that these become the subject of public ratification.

11. One way to implement what I’m calling a “sensible interpretation” would be to develop a hypothetical publicizability standard. For examples of such a standard, see (Kant 1983) and (Rawls 1999b, 115). 12. This claim about their relative unlikelihood of going astray rests on the assumption that their better knowledge or concrete awareness of the relevant considerations will generally make them less likely to go astray than those less aware of the relevant considerations, given conscientiousness.

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In the course of elaborating his claim that “there are no moral authorities,” Gert rightly notes that “no one has the authority to settle moral disputes in the way that the United States Supreme Court has the authority to settle legal disputes in the United States or the pope religious disputes among Roman Catholics” (2005, 12). Of course not. As I have argued, moral authority is not organized in any such centralized fashion. The account of moral authority developed in this book is a decentralized one. What about the moral authority exercised by the moral community in ratifying a new moral norm? Roughly speaking, that is an action by all of us. Accordingly, it does not involve turning over moral matters to experts. Coming as the third stage of the three-​stage process, however, it does have a constitutive effect: it puts in place a new moral norm. It thus completes a process that, though not deferring to experts, does have the power to settle some questions that are otherwise morally unsettled. The account’s assertion of this kind of constitutive moral authority raises a broader potential concern about deference—​a question about whether any moral agent ever has reason to defer to, or ever is liable to having their moral rights and duties nonderivatively altered by, the say-​so of other people. Any such suggestion may seem at odds with the autonomy of moral persons.

5.3 The Moral Community’s Authority Respects Autonomy We have inherited from Kant the thought that morality is addressed to, and is binding upon, autonomous persons. In my own fragmentary account of personhood in §2.1, I have avoided presuming that all persons are autonomous. Surely, however, many are; and surely, too, the autonomy of those persons deserves respect. “Autonomy” can mean many things. In Kant’s moral philosophy, its core meaning is the one that elaborates on the etymological link to the idea of self-​rule and builds on the contrast with heteronomy, or rule by what is other. Kant went on to argue that acting autonomously implies acting from respect for the moral law, but that further layer of his thought is unhelpful here. Instead, we may back up, conceptually, to the themes of Kant’s essay, “What Is Enlightenment?” There, Kant called for all persons to free themselves from their self-​imposed “tutelage” or “immaturity” and to dare to think (“Sapere aude!”: Kant 1988, 41: Ak. 35). Emboldened or inspired by this Kantian theme, one might interpret respect for autonomy as implying that ruling oneself requires thinking for oneself. While thinking for oneself is compatible with attending to testimony from others, it may be thought to entail refusing simply to act on another’s say-​so. To act on

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another’s say-​so is to treat another’s directive as settling how one ought to act. It is to treat the other’s directive as giving one content-​independent and peremptory (CIP) reasons to act in the way directed. These are reasons that attach independently of the content of what that person says and that settle what the addressee’s obligation is on some matter.13 To treat another’s say-​so as settling one’s obligation in this fashion is for one’s will to be subject to another’s. Reconstructing Robert Paul Wolff ’s critique of authority along these lines, Scott Shapiro (2002, 390) has suggested that Wolff ’s main point was the following: [T]‌he autonomous agent . . . never allows his will to be determined by the will of another. She cares solely about the act commanded, not the command itself, and will acquiesce only when convinced that there are good reasons to act on the command. According to this interpretation, autonomy and authority are incompatible because obedience to authority requires acting on CIP reasons, whereas the autonomous person does not acknowledge the existence of such reasons. Here, we may abstract from the idea of a command, for what is positively demanded by the skeptic about moral authority is, more generally, that each autonomous person assesses the reasons for himself or herself, without treating another’s decision as providing CIP reasons. I believe that this objection from autonomy poses an important challenge to any normative account of authority. Joseph Raz (2006, 1003) has cast this as the problem of authority. Further, I think that the concern underlying this objection importantly and properly constrains how the moral community could possibly exercise moral authority. I do not believe, however, that it rules out its doing so. Let me first address this issue as it arises with regard to the particular moral authority exercised at the input stage. I have noted that these exercises of particular moral authority yield moral judgments that are unfulfilled, in that their implications for all like cases are not 13. I take the abbreviation “CIP” from Shapiro (2002, 408), which there cites Raz (1979, 390). In glossing the peremptoriness of reasons, however, I follow Raz, who writes that the idea “that a valid command . . . is a peremptory reason” is one that “[w]‌e express . . . by saying that valid commands or other valid authoritative requirements impose obligations” (1986, 37). This is in contrast to Shapiro’s gloss (itself following H. L. A. Hart), which interprets peremptoriness as implying that the addressee “is expected to stop assessing the merits of the action in question” (2002, 389). Since my overall pragmatism goes against the idea of such bans on deliberation, even where authoritative determinations have objectively settled what the moral obligations are, reading “peremptory” in Shapiro’s way would make it too easy to duck the objection from autonomy.

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realized. In judging that a given resolution is morally apt for their case, the parties are implicitly committed to judging that it is apt for any case that is not relevantly different. The parties, however, do not purport to govern any other case but their own. Further, because, in the paradigm cases, each accepts the resolution that they have jointly worked out, neither acts on the other’s say-​so. As I argued in §3.5, it is essential that they must not see one another as simply being free to specify the right or duty as they see fit; rather, they are engaged in a joint effort to work out what morality requires of them for the case or issue at hand. And although what they work out together can have an authoritative effect on the rights, duties, and permissions that each holds vis-​à-​vis the other, constitutively altering them via the legitimate exercise of the particular moral power that falls to them, the authoritative effect of their determinations does not alter the rights, duties, or permissions of anyone else. At the input stage, then, when two counterparties, each a competent moral person, work out together how to specify a given special responsibility that one has to the other, the issue of treating another’s say-​so as giving a CIP reason does not arise. Instead, guided by their attempt to come to a defensible resolution on the merits and responding to one another’s concerns, they come to consensus on a new specification. Thus, although each is likely to have been influenced by reasoning offered by the other, in the end, neither needs to treat any reason given by the other as having peremptory force unrelated to its content. If exercising the moral power to reduce morality’s indeterminacy in a particular case is to exercise authority, then this is a case of authority; but if exercising authority is to give another a CIP reason, then this is not a case of authority. A further reason that it does not count as involving such a reason is that these specifications worked out at the input stage are tentative and easily reversible. Nothing precludes Dr.  Jones and her group of researchers and research participants from changing their minds about the principled compromise they had reached. Hence, although the input stage provides an essential basis on which to build general moral authority—​namely, a set of specificatory moves by particular pairs of people that are authoritative as to each other’s rights, obligations, and permissions—​these moves do not require either person to accept the other’s say-​so as a content-​independent basis for action. Rather, each member of the pair accepts the specification as one that the two of them have worked out in a conscientious effort to arrive at a good solution to a practical moral question. The three-​stage account of moral authority builds on this feature of the input stage, seeking to underwrite, as far as is reasonably possible, a parallel claim about the authority exercised on behalf of the moral community by those known and competent moral persons who are living. Only we, the persons currently alive, can introduce new moral norms. To paraphrase Pogo, we have met the moral

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authority and it is us. The convergence stage builds from the authoritative but particular exercises of authority of the input stage toward a de facto global norm. As we have seen, the de facto existence of a global norm does not entail unanimous support, but it does entail broad buy-​in. The legitimacy conditions of the convergence stage (no manipulation by those holding a disproportionate share of power, and no coercion) go some way toward assuring that this buy-​in reflects individuals’ autonomous assessments. The ratification stage will add a normatively significant layer involving broadly inclusive reflective acceptance. What the ratification stage involves is not an expression of individuals’ wills, but rather of their reflective acceptance of the norm. It thus issues no directive. Although one generation of the moral community thus will have a kind of authority over later generations, this is an authority that does not rests on merely on the community’s say-​so. Prior to its ratification of a new moral norm being effective, the moral community must already have put its money where its mouth is by having converged, de facto, on following this norm. Further, any such exercise of the moral community’s authority seems in principle reversible by a subsequent operation of the three-​stage process. That would be because, by hypothesis, the question that had been settled is one that the eternal core of morality’s norms (if any) leaves indeterminate.14 Even though, going forward, a newly introduced moral norm has objective status (as I will argue in c­ hapter 10), and hence can serve as a platform for future specifications of new moral norms, it would be possible for social practices to change in a way that both unwound adherence to the social practices underwriting adherence to an authoritatively introduced moral norm and withdrew the moral community’s reflective acceptance of it. Moreover, the process described in the three-​stage account is friendly to autonomy. It would be wrong to claim for it what Rawls claimed about the choice of principles in the original position—​namely, that the three-​stage account describes a process defined in terms of “conditions that best express their nature as free and equal rational beings” (Rawls 1999b, 452).15 Since the processes to which the three-​stage account appeals are actual ones, not idealized ones, such a tight link to the conditions defining autonomy is not to be expected. Even so, because this account emphasizes the role of the parties’ unconstrained moral

14. I put this claim tentatively because, not having committed myself to a specific position on the ultimate truth-​makers of moral statements, I am not in a position to know whether morality has an eternal core—​or, if it does, how it interacts with the new, objective moral norms being added by the process defended here. 15. Earlier in that book, Rawls (1999b, 224) persuasively, if briefly, suggests that Kant’s failure to explain how “acting from the moral law expresses our nature in identifiable ways that acting from contrary principles does not” is an important flaw in his moral theory.

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reflection in the first stage and of the moral community’s unconstrained moral reflection in the third stage, this process seems fully compatible with respect for individuals’ moral autonomy. In sum, then, the three-​stage model depicts how the moral community can become articulated. As a by-​product of that, those with special responsibilities are authorized to put forward what we can consider, given that we assume the necessary conditions have been met, as candidate moral norms. These can become new moral norms if they gain sufficient de facto acceptance, and if they are ratified by the moral community. Seeing that the three-​stage process does not involve anyone being bound simply by anyone else’s mere say-​so, and that it draws on individuals’ autonomous reflections in the first and third stages, should help reconcile this account with the idea of autonomy. But can such a process really generate new moral norms?

5.4 New Moral Norms Morality’s objective core (its invariant core plus what has already been authoritatively added to it) leaves some issues indeterminate or unsettled. The authoritative revisions whose possibility I  am defending would settle some of these leftover questions rather than overthrowing any part of the objective core. Compared to doing the latter, the revisions that I am discussing may be relatively tame. Because they arise via specifying some initial norm, to some extent they will rest on that initial norm; they will, to that extent, be “deontologically conservative” (Shapiro 2002, 408). Some, accordingly, will object to calling them “new.” I call the newly ratified specifications “new moral norms” because they will make a general difference to people’s moral rights, duties, and permissions. Although perhaps primarily gaining their normative basis from the norm they specify, many additional substantive considerations can enter into justifying any given specification. In addition, their having resulted from the three-​stage process implies that many morally significant procedural considerations are reflected in their ratification. Reinforcing these points is the obvious fact that many mutually exclusive and materially quite distinct ways of specifying any given norm are always available. Hence, an adequate justification of any one specificatory innovation cannot rest solely on the norm it specifies. Further, part of the way in which any ratified specification will make a material difference to what people, morally, should do is by displacing or resisting alternative specifications. Hence, if such specifications can be established as moral norms, then I see no reason not to think of them as new moral norms. In any case, because we do not know how far morality’s objective core extends, there is

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little sense in worrying about just how significant the limitation to revisions that specify this objective core may or may not be. Another way to answer this objection to speaking of “new” moral norms is to explain that they cannot be derived from the existing moral norms in any ordinary sense. By a “new moral duty,” one might mean a duty that cannot be derived from the content of an existing moral duty in conjunction with a new, nonmoral fact.16 So, for example, I put drivers under no new moral duty by stepping out blindly into traffic (see Estlund 2008, 143). Instead, by combining my unexpected presence on the road (which is reckless but is not a moral fact) with their general duty to operate their vehicles with due care, we can infer that they now have a duty to brake or take evasive action.17 This latter, disjunctive duty is not a new duty, in the relevant sense: It is simply a statement of what must be done, in the new circumstances, to discharge a general duty that was already present. This is similarly the case with special duties: If I have agreed to take care of your vintage MG convertible over the summer, and a thunderstorm comes up while the car is parked in my driveway with its top down, I come under a duty to put the top up or drive the car into the garage. The thunderstorm creates no new duty, in the relevant sense. What else can happen? In referring to what can be inferred from the content of a general duty, I mean to distinguish these cases from ones in which the moral situation is changed by the exercise of a moral power, such as that of promising or consenting—​or, to take the cases central to my argument, the moral power of exercising discretion so as to specify the content of a directed duty, as in the input stage, and the moral power of the moral community to ratify a candidate global norm as a moral norm. For example, consider my promissory obligation to take care of your vintage MG. This results from a new fact—​the fact of my promising; but it does not generate the new result in conjunction with the content of a moral duty. Rather, it is derivable only in conjunction with a second-​order, empowering principle—​one that says that if someone does something (promises, consents, exercises discretion, etc.), then a certain duty arises (see §9.1). Somewhat more formally, we might say that a first-​order duty takes the form O(p), or a generalization thereof, and that the kind of derivability excluded by 16. The remainder of this paragraph and the following one I adapt from Richardson (2015). 17. I put this duty in disjunctive form to highlight that there commonly is more than one sufficient means available in any given context. The derivation in question here goes via the rational requirement to take sufficient means to meet one’s ends. On the formulation of that requirement, see Broome (2009). All that can be thus derived is that one must take one of the available sufficient means. Here, by hypothesis, one thus cannot derive in this way a duty to brake. To settle on the duty to brake would be to specify further the driver’s duty. For more on the contrast between specification and more deductive ways of proceeding, see Richardson (1990b).

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the claim that a given moral duty is new is the sort in which the duty derives from the content of an established duty or obligation (i.e., from the proposition p) plus some additional fact. In my first example, let proposition p be “One drives with care so as to avoid injuring pedestrians.” Obvious additional physical facts and basic principles of instrumental reasoning indicate that, in the circumstances at hand, driving with care implies either braking or swerving. A principle of closure (such as “One has a duty to do what is reasonably entailed by what one has a duty to do”) then will allow deriving the more focused, circumstantial duty, which is not a new moral duty in any interesting sense. Empowering norms, by contrast, are a special case of second-​order norms that take a conditional form, q → O(p), wherein the antecedent refers to the historical and contingent fact that a particular person has exercised some moral power to put in place a new norm. For example, to avoid invoking my entire story about how new moral norms get established while still allowing a moral interpretation of the operator O, recall §4.2’s case of Alduin, who with the concurrence of Schalduin incurs a particular moral obligation not to knowingly deceive the other about deal-​killing conditions in the building that he is selling. For instance, from an appropriate conditional reflecting their power to bind themselves in this way and the fact that they have done so, one can derive the conclusion that he has such an obligation. Notably, this derivation does not depend only on the content of the initial characterization of the action to be done (the consequent of the conditional). Rather, the derivation depends on the entire conditional and the historical fact about the exercise of a moral power that this norm’s antecedent names. The obligation that arises is, initially, particular to Alduin; and even if it is accepted as a new moral norm by the moral community, it is valid only in the actual world. Still, for him it is a new moral requirement. Since I owe this way of distinguishing this pathway of derivation from the foregoing to Kieran Setiya, I will refer to this as “Setiya’s distinction.”18 This distinction between what is derivable from existing first-​order norms, on the one hand, and what is derivable only given the assumption that the relevant agent or agents have exercised some moral power, on the other, helps clarify how I  am conceiving of the introduction of new moral norms. They must be cases of the latter. Indeed, they are special cases of the latter, for the difference made by the relevant exercises of moral power bears not just on the obligations of this or that agent, but in a general way on people’s obligations. To be sure, if we consider the full set of moral norms as including all first-​order norms plus all 18. Setiya suggested this way of characterizing the cases of interest to me at a workshop on law and morality at the University of Pittsburgh in December 2012. I am also grateful to James Dreier, Japa Pallikkathayil, and Paul Weithman for discussion of these matters.

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objective empowering norms, then there will be a clear sense in which any “new” moral norm derives from the full set of moral norms plus the nonmoral facts; but the full set of objective norms is something which we know very little about and which may be only dimly reflected in our lives. Moreover, if my account is correct, then salient among the nonmoral facts thus made relevant will be the fact that the three-​stage sequence has run its course, culminating in the moral community having ratified the norm as a norm of morality. Thus, this dependence of the process on an objective background seems to me to be fully compatible with recognizing that contingently ratified norm as new.

5.5 New Objective Norms This role for empowering norms also helps, in an initial way, with the issue to be taken up in earnest in ­chapter 10—​that of how to reconcile the possibility of gen­eral moral innovation with moral objectivity. I have just, in effect, emphasized that these new moral norms result from a contingent unfolding of an historical process that is thoroughly dependent on the mental attitudes of the participating individuals. Yet what I am seeking to explain is how new moral norms can be established, adding to the existing stock of objective moral norms. Even supposing that the additions are moral norms, how can they possibly count as objective? In order to get past the threshold, I gave a brief answer to this objection in §I.1. I also have just alluded to it. I am supposing that the universal, objective norms of morality include some second-​order norms that authorize people—​whether acting individually or via complex patterns of social cooperation—​to take some of the particular steps necessary to issue new moral norms. Specifically, they authorize the particular use of discretion by pairs of individuals bound together by a special moral responsibility, and they authorize the moral community to ratify a candidate global social norm as a norm of morality.19 This possibility is compatible with many different metaethical theories.20 It is also compatible with the formal sort of universality or universalizability definitive of moral truths, for the fact that such-​and-​such a moral norm has been fashioned in this authorized way can be absorbed into the set of circumstances in which an agent acts. Given such second-​order moral norms authorizing norm issuance, a given moral norm might, as the result of some deliberate human choice, come to be in force in an authorized way.

19. For this formulation, I am indebted to Michael Bratman and Wlødek Rabinowicz. 20. The remainder of this paragraph is taken from Richardson (2013c).

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Although doubts about the possible objectivity of these new moral norms will need to be addressed more thoroughly in c­ hapter 10, we are now in a position to say that if a new moral norm comes into existence via an objectively authorized process, it can make an objective difference by affecting what people ought morally to do. By objectively altering what we ought to do in a general way, the complex, collective exercise of moral discretion described by the three-​stage process is not enhancing our grasp of the truth in any straightforward way, but rather reducing morality’s indeterminacy.

6

WORKING IT OUT TOGETHER

Joint Moral Reasoning

In an articulated moral community, as I have argued, we begin more fully to determine the content of morality by sincerely and conscientiously attempting to work out moral difficulties together. Via the three stages of authorized input, convergence, and ratification by the moral community, these efforts in turn can contribute to the articulation of new moral norms—​moral norms underivable from, though supportable by reference to, moral norms that are available independent of this social process (§5.4). Although this process will not be purely rational, collective or joint moral reasoning plays an essential role in the first and third stages. By contrast, the middle stage of this process, wherein many candidate moral innovations may vie for acceptance and convergence on one of them is achieved, can proceed largely on the basis of tacit mechanisms. People can “vote with their feet” simply by living according to the practice in question. Moral practices can evolve without intentional steering, as can a set of particular customs. Yet collective moral reasoning can contribute also to this middle stage. For instance, this will be likely where there are centralized mechanisms that aim to articulate moral guidance, as in the case of Dr. Jones and the issue of placebo-​ controlled drug trials, discussed in previous chapters. For the overall process to work as a collective exercise of moral authority—​that is, as a process that puts us under duties not derivable from ones antecedently given—​each stage must proceed legitimately, as must the whole. Setting out sufficient conditions for the legitimacy of these elements and of the overall process is beyond our reach; however, we can discern some necessary conditions of legitimacy. Among them are conditions that call for a role for joint moral reasoning. For instance, the legitimacy of the input stage paradigmatically depends upon counterparties sincerely and conscientiously working out, together, what ought to be done, as in the case of Alduin and Schalduin

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(§4.1). This means that, to be a legitimate exercise of moral discretion, theirs must be an effort in joint moral reasoning. In this chapter, I give an account of the kinds of joint moral reasoning that must be involved in all three stages. I  have two purposes in doing so:  first, to clarify what I mean when I stipulate that certain phases of the process must involve such reasoning; and, second, to provide an account thereof that can resist a philosophical tendency to doubt that moral reasoning can be socially embodied—​especially in a way that respects the kind of differential allocation of moral responsibilities that is characteristic of an articulated moral community. To orient us to this effort, let me start with a brief review of the role of reasoning in the three-​stage process. For one thing, in the give-​and-​take of working things out at the input stage, the parties need to communicate with one another explicitly, asking for and offering considerations in favor of one approach over another. These might be reasons in a narrow sense (namely, pros and cons bearing directly on one option or another); or they might draw on requirements of “structural rationality” that have more to do with the coherence of the commitments of one or the other party, or of a view that they are working out jointly.1 And their efforts are importantly directed, not simply to a theoretical conclusion about what they ought to do—​although in sincerely working out what they think ought to be done, they will reach theoretical conclusions—​but also to a practical conclusion: they are working out what to do. Hence, their efforts aim at forming an intention—​not necessarily a joint intention, but at least a pair of duly meshing practical attitudes, minimally involving a newly determinate intention (plan) on the part of the duty-​holder about how to proceed and a practical attitude of acceptance on the part of the right-​holder. “Reasoning” I here understand as responsibly conducted thinking in which the reasoners, guided by their assessments of the relevant reasons and of any requirements of structural rationality, attempt to reach a well-​supported answer to a well-​defined question.2 “Moral reasoning” is a species of practical reasoning; 1. I take the term “structural rationality,” so understood, from Scanlon (2003, 13). The kinds of structural requirements that Scanlon has in mind have been pioneeringly explored by John Broome in a series of articles beginning in 1999; see, for example, Broome (1999, 2004). On coherence among our commitments more broadly, see Richardson (1994, chap.  7). In the following discussion, I will return to simply saying “reasons,” in the hopes that this term may also be read broadly as referring both to reasons, narrowly understood, and structural requirements of rationality. 2. In this sentence and the following, I am using formulations taken from Richardson (2013a). On the importance of questions in practical reasoning, see Hieronymi (2013). In other contexts, it would be overly restrictive to assume that all reasoning is focused by the effort to answer a question: see Broome’s case of groggy reasoning (2013, 216). I believe, however, that this restriction does no violence in the present context and offers some illumination.

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that is, a type of reasoning directed at deciding what to do and, when successful, issuing an intention. Those who attempt to work out, together, a moral difficulty that might conceivably generate a moral innovation are clearly engaged in an effort at moral reasoning, so understood. The middle stage, which serves to select a possible moral innovation and to bring about a tentative convergence upon it, might well proceed completely unreflectively, via unsteered social pressures. In itself, of course, the stage of reflective ratification, which I have not yet described in any detail, essentially involves explicit thinking. Because this thinking will be focused on whether to accept or endorse a given moral norm, this stage, too, will necessarily involve joint moral reasoning, in the sense just laid out. A legitimate process of ratification often will be called upon to include reflection on the processes whereby the candidate specification emerged—​and thus on the actual conduct of the two preceding stages. The participants will not have thought of themselves as exercising moral authority or as making small moves toward moral innovation, for knowledge that they are doing so is unavailable and belief that they are doing so is ruled out. Yet we are working on the hypothesis that they are nonetheless doing these things. The idea that the initial give-​and-​ take of reasons between the individual parties was well carried out and that the social process of selection was reasonably and fairly responsive to reasons, as appropriate, in fact makes a difference to the legitimacy of the process, and so to the possibility of moral innovation. Insofar as my characterization of the first two stages is correct, then, it is reasonable to expect that the ratification stage typically will involve some reflection on the provenance of the candidate specification—​reflection that takes critical note of the reasoning embodied therein. Such genealogical considerations are often irrelevant to moral issues, but when we are concerned about whether a given set of deliberations can give rise to a new moral norm, such considerations of process come to the fore as clearly relevant. Insofar as the moral community, in the ratification stage, takes up such considerations, its members will seek to reconstruct even the operation of any tacit selection that takes place during the convergence stage as if it were a social process of reasoning, if one guided by an invisible hand. Accordingly, the overall process of moral innovation defended here involves joint moral reasoning of three types: 1. Joint moral reasoning between the duty-​holders and the right-​holders at the initial, input stage 2. Joint moral reasoning at the ratification stage, directed toward acceptance 3. Joint moral reasoning in the overall process—​including the convergence stage, even if it proceeds tacitly—​as reconstructed in the ratification stage

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Since joint moral reasoning is required at each of these levels, I seek in the remainder of this chapter to characterize the sort of joint moral reasoning that must be involved. I begin with a negative point—​namely, that existing idealized understandings of joint moral reasoning, such as those gestured at by Kant’s conception of the “kingdom of ends” (1998b, 41–​43: Ak. 4:433–​435) or Habermas’s discourse ethics (1990), are not adequate to this task. I then turn to developing an account of joint moral reasoning that is.

6.1 Why a New Account of Jointly Embodied Moral Reasoning Is Needed The sort of joint moral reasoning that we can expect from counterparties working out together how to specify a moral responsibility (or, more broadly, in the ratification stage) is not well captured by either of the two models of moral reasoning most salient in the Western philosophical tradition. Simplifying things considerably, we could see traditional philosophical conceptions of moral reasoning as tending to fall into one of two categories. One prevalent type is abstract and idealized. It describes ideal moral reasoning as aiming impartially to capture the perspective of all persons, and as abstracted from specific social forms. Such reasoning can be depicted as monological—​as in the case of Adam Smith’s impartial spectator (1976) or R. M. Hare’s archangels (1981)—​or virtually dialogical, as in Kant’s conception of the kingdom of ends, John Harsanyi’s (1982) or John Rawls’s (1999b) parties behind a veil of ignorance, or Jürgen Habermas’s (1990) discourse ethics. The other prevalent type is particularistic. It describes ideal moral reasoning as the work of an appropriately perceptive individual embedded in a specific social context. Some versions of the particularistic type idealize, often by hearkening back to Aristotle’s ideal of the phronimos, the person of practical wisdom. Particularistic models of moral reasoning are commonly endorsed by defenders of virtue ethics and other Aristotelian approaches (cf. Nussbaum 1990) and of particularist metaphysical theories that deny that there are true or valid general moral principles (e.g., Dancy 2004).3 The reasoning required to work things out, morally, within an articulated moral community must partake of elements of each of these two archetypal extremes. Like the particularist models of moral reasoning, it must be embodied 3. I do not pretend that the text’s stylized contrast between two types of accounts of moral reasoning exhausts the kinds of account that have been put forward. For example, Ross (1988, 42) invokes the trained perception of the virtuous in explaining the role of general, prima facie duties.

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within existing moral practices and understandings and attuned to that context, and yet, to facilitate the communication that the process requires, it also must, like the abstract models, make significant room for explicit reasoning. For similar reasons, the required understanding of moral reasoning must not be limited to the characterization of an ideally perceptive individual. To be merely virtually dialogical will not suffice. Rather, the needed understanding must enable us realistically to describe how people are actually able to work out moral issues with one another. In the account of an articulated moral community that I am giving, the sort of understanding of joint moral reasoning needed differs from that needed by philosophers who aim to construct an Archimedean point useful in adjudicating among entire theories. For my account of moral innovation, an appropriate understanding of joint moral reasoning needs to explain how we can do together what the account claims we can do—​namely, more fully work out the content of morality with one another in a legitimate way. The need for communicating reasons and arguments to others in a way that could end up supporting a new general principle suffices to explain why the particularist understanding of moral reasoning is not useful here. A longer discussion will be required to explain why the abstract ideals of moral reasoning are not apt for this task and why we must resist their attractions. I will begin with a preliminary airing of the issues before developing a pair of arguments at greater length. What crucially disables the abstract and idealized models of moral reasoning from being useful in describing how people might actually work things out together as members of the articulated moral community is that they abstract from differential moral empowerment. These models of moral reasoning typically either center on the reasoning of one all-​responsive individual or depict an impartial engagement among individuals who encounter one another simply as moral equals. I will take as my example of this whole category of abstract, idealized models, as the foil for my discussion, Habermas’s insistence that in argumentative discourse, “only the unforced force of the better argument” holds sway (1993, 163; cf. 1990, 160). This condition implies that no one is therein specially empowered with regard to any moral issue. This suggestion or implication runs directly counter to the core element of the ideal of an articulated moral community, which precisely depends upon a moral division of moral labor such that specific people are charged with specific moral responsibilities with regard to specific others. The idea that we must think about speech and practical deliberation in a way that is divorced from considerations of power has a deep hold on the philosophical imagination—​and for very good reason, of course. Even if it proved useful

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in helping us deduce a few schematic principles of discourse ethics,4 however, it is not well suited to characterizing how we actually reason with one another as a moral community. The moral community is too large, complex, and unwieldy to do without a division of deliberative labor like the one that the allocation of special moral powers establishes. Defenders of such abstractly impartial conceptions of moral reasoning will naturally respond that while the idea of the forceless force of the better argument, or that of a kingdom of ends, is not well suited to model the social organization of our moral reasoning, neither is it intended to. Rather, such ideas are intended simply to capture that by virtue of which a communicative exchange counts as a case of moral reasoning. Insofar as an exchange approximates this impartial ideal, its defenders will contend, it will count as moral reasoning; and insofar as it is constrained by the empowerment of anything but the forceless force of the better argument, it may be seen as being influenced instead by social forces of one kind or another, such as those influencing the moral understandings that hold sway merely here or there, now or then. Models of moral reasoning that invoke a veil of ignorance, such as Harsanyi’s and Rawls’s, also seek to factor out such contingent and potentially distorting influences. In so doing, they build a strong commitment to impartiality into their ideal reconstructions of moral reasoning. These approaches share a commitment to characterizing moral reasoning as an impartial sifting of arguments conducted in a forum abstracted from any specific social arrangements. Shouldn’t all moral reasoning at least strive to approximate this ideal? In the remainder of this section, concentrating on the Habermasian form of this abstract ideal of joint reasoning, I will seek to provide two arguments against accepting it. First, I will briefly remind the reader of the central importance of recognizing that the moral truth is underdetermined by facts independent of our deliberations. To take underdetermination seriously, I will suggest, is to see the need for something other than the forceless force of the better argument to hold sway. Second, I  will argue that balancing the attractions of sticking with the forceless force of the better argument is the fact that empowering the deliberators is an important necessary condition of responsible and effective moral reasoning. Whether all can be seen as simultaneously empowered as to every moral issue or whether, instead, different people are differently empowered becomes a

4. For the central claims of discourse ethics, see Habermas (1990). Powerful critiques of his attempt to derive such principles from the presuppositions of communication have been presented by Cooke (1994) and Heath (2001), among others.

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subsidiary issue from this perspective, pertaining to how it makes sense to divide our deliberative labors. My first response, then, is that, at least when elevated to the status of general ideals for moral reasoning, abstract ideals such as Habermas’s fail to take underdetermination seriously. Why should we expect that the forceless force of the better argument will lead us to good decisions? It seems that the answer must be that the better arguments will track the deliberation-​independent moral and nonmoral facts that together determine what ought to be done. There is, thus, ironically, a layer of moral realism underlying this kind of abstract ideal that is at odds with the self-​conceptions of its most prominent defenders, who aim to characterize sound moral reasoning, not in terms of its reliability, but in intrinsically procedural terms.5 If I am right, however, that the only available interpretation of the idea of a better argument is an implicitly realist one, then it follows that when the deliberation-​independent facts do not settle what ought to be done, relying solely on the forceless force of the better argument leaves us in the lurch, along with Buridan’s ass.6 In earlier chapters, however (esp. c­ hapters  3 and 4), I  have built a case for recognizing that many moral questions are not settled by the deliberation-​ independent facts, and I have argued that we, the moral community, nonetheless can settle some of them in a reasonable way. Those wanting to reconcile this possibility with moral realism, I  suggested in §I.1, may suppose that there are deliberation-​independent moral facts that empower us to do this.7 For now, the abstract point that I want to stress is that, if the idea of “the better argument” must be interpreted simply in terms of tracking the deliberation-​independent facts, it gratuitously forecloses valuable ways of reasoning. And in any case, since this abstract ideal is incompatible with the view elaborated here, it cannot help me to elucidate it. Defenders of abstract ideals of moral reasoning, in fact, may hold that insofar as deliberation has a constitutive effect, as distinct from simply tracking a deliberation-​independent truth, it cannot count as reasoning. Instead, it devolves into a kind of “decisionism,” in which the deliberative decisions that fill in the objective gaps in morality would be seen as pure acts of will, unconstrained by reason. Elaborating a possibility denied by Kant, it sets up a division between 5. For the high point of Rawls’s constructivism, as contrasted with moral realism, see his 1999a paper (esp. 307, 350–​354). For Habermas’s resistance to moral realism, see Habermas (1993, 25–​26). 6. On such issues of rational undetermination, my understanding has greatly benefited from Heuer (2013). 7. I will explain this possibility further in §9.2.

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reason and will. From a decisionist viewpoint, reason can take us only so far; after its materials run out, the will must take over, to pick as it pleases.8 According to this objection, to see things thus is to extend to morality the dangerous sort of view that Carl Schmitt held about the law, which he described as resting ultimately on “pure decision not based on reason and discussion and not justifying itself . . . an absolute decision created out of nothingness” (Schmitt 1988, 66; cf. Scheuerman 1999, 33). That is not the sort of view advocated here. For one thing, I have cast moral indeterminacy as typically arising, in fact, from a plethora of incommensurable principles rather than a dearth thereof. Further, from each individual’s subjective point of view, moral considerations generally seem so complex and varied that they seem very difficult to exhaust. Accordingly, my account does not characterize individuals as taking up a decisionist’s attitude toward moral choices. Recall, here, the conditions of sincerity and conscientiousness that apply at the input stage. In addition, my account implies that if the deliberators viewed their decisions as objectively unconstrained, their decisions would have no authoritative effect. Although my account of moral innovation is thus not decisionistic in this worrisome sense, it does describe the counterparties as reaching a conscientious decision at the input stage and the process of ratification as bringing a kind of closure. By contrast, while Habermas’s ideal conditions on discourse serve to sketch an attractive, if highly idealized, conception of joint reasoning, they do not do anything to indicate how this reasoning is to come to closure—​how it is ever to reach a decision—​nor are they intended to do so.9 As Anthony Laden notes, “by offering you a reason, I am implicitly giving you space to reject it, and thus to keep on talking” (2012, 28). Sometimes, though, we need to bring a discussion to closure and reach a decision. The more concrete picture developed here of joint moral reasoning within an articulated moral community is pitched at a considerably lower level of idealization than Habermas’s. It is not intended to help ground a specific set of principles, as are Harsanyi’s or Rawls’s abstract models of moral reasoning. Instead, it aims to help make it intelligible how we can work out, together, the fuller determination of morality. I turn now to the second reason to resist the temptation to suppose that we can adequately understand the joint moral reasoning of an articulate moral

8. I use the verb “pick” in the sense described in Ullman-​Margalit and Morgenbesser (1977). 9. In Habermas’s major work on legal and political decision-​making, he notes the need to rely on majority rule to generate decisions within finite time constraints. This reliance he there seems to accept rather reluctantly as “a caesura” in the search for truth via unconstrained discourse (Habermas 1996, 179). For a more enthusiastic appraisal of reliance in politics on such closure mechanisms as majority rule, see Richardson (2002, chap. 15).

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community via one of these abstract conceptions of impartial reasoning. Whereas the first reason fingered the limitations of the idea of “the better argument,” the second reason focuses on the seductive appeal of its forceless force. I am no defender of coercion and will put forward later in this chapter a conception of joint reasoning that rules out coerciveness. The account of moral innovation that I am defending, however, depends on the idea that differently situated individual persons or pairs of individual persons have different moral powers. Among these are moral powers to specify norms in a way that affects the moral rights and duties of some particular persons. A conception of reasoning adequate to supporting this account will need to take account of this fact. To connect this observation about the role of moral powers in the account with abstract ideals of reasoning, it will be helpful to expand the observation slightly. Typically, when counterparties such as Alduin and Schalduin are working out what to do about a moral issue that is not objectively settled independently of their deliberations (as described in §4.2), it will not merely be the case that they each have special discretionary moral powers with regard to how to interpret the moral obligation that links them; it also will be true that, absent some delegation of authority by one or the other, no other people have discretionary moral powers to settle authoritatively on an interpretation of what one of them owes the other. This decision is theirs to make. When their discretionary powers over each other’s rights and obligations are exclusive in this way, we can call this “jurisdictional empowerment.” This idea of jurisdictional empowerment lies in the background when we apply the distinction between making practical decisions, on the one hand, and offering practical advice, on the other. As Aristotle wrote, “we deliberate about things that are in our power and can be done,” making clear that he meant that we cannot deliberate about things that we know cannot be done or are not in our power to do (Aristotle 1984, 1756: Nicomachean Ethics III.3, 1112a30–​a31). In this, he seems correct. Among the kinds of issues about which, he rightly suggested, we cannot (or cannot sensibly) deliberate are whether to create a four-​ sided triangle or whether to launch a satellite into a rectangular orbit—​that is, questions that blatantly ignore conceptual or natural necessities. These matters are necessarily impervious to our will. Yet he also suggests that, in this context, what is in our power must be read more narrowly still. As he writes: “[W]‌e do not deliberate even about all human affairs; for instance, no Spartan deliberates about the best constitution for the Scythians. For none of these things can be brought about by our own efforts” (Aristotle 1984, 1756:  Nicomachean Ethics III.3, 1112a28–​a30). Perhaps there is some sort of natural impossibility expressed in the judgment that Spartans cannot bring about a new constitution in Scythia, but recent efforts at what is

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euphemistically called “regime change” might make us doubt that it is impossible to impose a constitution on those of another nation. More to the point, it is not up to the Spartans to decide upon a constitution for Scythia. The decision is not theirs to make. In other words, they lack the appropriate jurisdictional empowerment. To take another example: As I argued in §3.5, there are important substantive reasons why we should give parents considerable autonomy in many matters about how their children are raised, so long as they do not neglect to look after their children’s welfare or their eventual roles as citizens and as reasonably cooperative members of society. Supposing that I  could deliberate about how you should discipline your children would be as infelicitous as supposing that a Spartan could deliberate about constitutional reform in Scythia. In the earlier phases of my discussion, the notion of jurisdictional empowerment implicitly arose as a necessary condition on the aptness of deliberating on a given question. To respect this normative connection between the scope of practical deliberation and what is within an agent’s moral power to settle, a conception of practical reasoning should keep track, not only of the relative merits of the arguments, but also of who is morally empowered to settle what. Although such moral powers are not coercive, neither are they forceless.10 To say that a decision is up to some specific person to make, or even that he or she has some discretion over the matter, does not put that decision beyond criticism. Kant soundly emphasized that “[r]‌eason . . . cannot restrict the freedom of critique through any prohibition without damaging itself. . . . The very existence of reason depends upon this freedom, which has no dictatorial authority. . . .” But when he goes on immediately to say that reason’s “claim is never anything more than the agreement of free citizens, each of whom must be able to express his reservations, indeed even his veto, without holding back” (Kant 1998a, A738–​ 739/​B766–​767), Kant oversimplifies.11 Likening the claim or the verdict of reason to the agreement of free citizens as a body was a powerful trope of Enlightenment reform; but as against the account I am developing here, which views moral reasoning as embodied in a complex division of labor, it simply begs the question. And the insistence, in this passage, on the freedom to offer criticism, important as it is to social reasoning, does nothing

10. This fact is vividly brought out by Sen (1981), who was discussing a highly unjust situation. 11. I was drawn to this passage by Laden (2012, 14–​15), who offers an attractive account of social reasoning as centrally consisting of “inviting others to accept that our words can speak for them as well” (vi). Laden finds Kant’s talk of a veto acceptable, writing that “a reason must be a genuine offer, an invitation: open, as Kant does say, to being vetoed by others” (15). But invitations are not subject to being vetoed.

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to establish the further claim that each individual has a kind of veto on every practical question. This further claim would imply that no one has special moral authority. Maintaining freedom of critique and openness to criticism is important, and comes to the fore in my account’s later stages; but this does not imply that there is no room for recognizing jurisdictional empowerments. As to the idea of each individual having a veto, Scanlon’s contractualism has shown that this can be a useful element in an hypothetical criterion of right and wrong; but it is out of place in socially embodied and actual moral reasoning of an articulated moral community, which depends upon morality already being to some extent up and running—​and so, as I argued in §3.3, on a differential allocation of moral responsibilities. Reasoning, as I  have characterized it for present purposes, is responsibly conducted thinking. Openness to criticism is important to assuring that this thinking is conducted responsibly; but so, too, is jurisdictional empowerment. Here, the crucial point is this: It being up to an agent or group of agents to decide some specific moral question that has arisen as a practical matter—​how their children ought to be raised, for instance, or whether the participants in the control arm of their drug trial ought to be given placebos—​is crucial to bringing adequate discipline to their thinking.12 Wise advisers can provide valuable perspective, and knowledgeable advisers can offer needed insights; but when those who are not empowered to reach a decision think about a specific moral question, they are surely all too apt to be derailed by wishful thinking. When simply kibitzing by expressing one’s preference in an opinion poll or other unempowered setting, one has no incentive to take seriously the costs of getting what one wants. As Fontane put it in Effi Briest, “thoughts and wishes are toll-​free” (2001, 157, my trans.). It tends to be only when we are forced to make a practical decision that we fully face up to the fact that we cannot have it both ways.13 We are always free to wish to have it both ways; it is only when we set ourselves to deciding on a concrete course of action that we are firmly pushed to recognize that we cannot. Collective decision-​making (via mechanisms other than unanimous agreement)

12. I developed this point more fully, in the context of democratic deliberation, in Richardson (2010). 13. I am grateful to Ole Koksvik for having convinced me of the importance of not claiming more than this. Those empowered to decide matters are also subject to wishful thinking; and those who are not can be self-​disciplined enough, or steered well enough by their environment and interlocutors, to avoid wishful thinking. Hence, what I am pointing to in the text is no more than a tendency.

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seems particularly prone to wishful thinking, for it is difficult to arrange for mechanisms to hold the group rationally accountable (List 2006). For example, suppose that most individuals believe that a nation ought not undertake another war without raising taxes to pay for it. Even if they do, however, it is easily possible—​as actual experience sadly shows—​for majority decisions to be made that support both embarking on a new war and refusing to raise any new taxes. By this kind of failure of group responsibility, we are reminded that facing up to the limitations of what is in our power and can be done is not easy. In a process of joint decision, even if the individuals attempt to discipline their thinking by referring to what is possible, the structure of collective decision-​making can undermine their efforts, yielding an overall process that is not adequately disciplined in this way. Accordingly, in order for actual moral thinking to be adequately disciplined to count as reasoning, it is important that individuals enjoy some jurisdictional empowerment—​some matters over which, as individuals or in combination with a few others, they enjoy exclusive moral powers. Thankfully, morality is so arranged. My account of the process of introducing new moral norms harnesses this fact at the first, input stage. In the subsequent stages of convergence and ratification by the moral community, there is plenty of occasion for open-​ended criticism to enter. In an articulated moral community such as the one in which we live, then, an abstractly universal account of moral reasoning provides an inadequate way of modeling the reasoning of the moral community. Such accounts inadequately allow for moral underdetermination and inadequately discipline thinking. These considerations provide reasons to hold these historically influential ideals of reasoning at bay while we seek a suitable account of the moral reasoning that an actual moral community could undertake.

6.2 Generality, Inclusiveness, and Deference to Authority To move toward a constructive account of the moral reasoning of an articulated moral community, we need to examine three more specific dimensions on which its reasoning can depart from abstractly universal models: generality, inclusiveness, and deference to legitimate authority. The specific form that the concrete embodiment of social reasoning takes with regard to any given issue or set of issues can vary in terms of how radically it departs from abstractly universal models in these respects. In setting out these possibilities, I will take for granted the account of the three ordered stages that I set out in c­ hapter 5: a stage of input,

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a stage of selection and convergence, and a stage of reflective ratification. By the end of the social process of ratifying a new determination of morality, a general formulation of a norm must have been attained and the perspectives of all those affected must have been heard, insofar as this is reasonably possible. (Why this last condition must be met, I will explain in the next chapter.) Social processes of moral reasoning, however, can vary as to how early in the three-​stage process these elements of generality and inclusion enter; presumably, once they have entered the process, they will remain. Deference to legitimate authority, by contrast, need not enter at all; but it might arise with regard to one or another level. I assume that, for any moral innovation to arise, it must be reflectively understood in fully general, or universalized, form, at least by the stage of ratification. Whereas the particular determinations of those with special duties that we first encountered in ­chapter 3 may lack such generality completely, anything that might count as a new moral norm or a fuller determination of morality must have the universality of a moral norm, and hence claim application to all persons. It is possible that generality of form will be present at all three stages of the process, with the initial inputs being characterized from the outset as alternative interpretations of moral norms. It is quite likely, however, that at the input stage, the norms specified are considered by the parties simply as resolving their own quandary. While generality might then arise in the convergence stage, that is not necessary. Especially when the selection process that occurs as a prerequisite to convergence is a tacit or evolutionary one, it may well not involve any formulation of general norms. Hence, there are three possibilities: generality might enter at the outset, in the input stage; it might enter in the convergence stage; or it might enter only at the ratification stage. The same possibilities exist with regard to when the inclusion of the perspectives of all affected enters the process. The input toward moral innovations that crucially arises from the discretion attaching to special moral responsibilities involves a bilateral effort to work things out together. At least where both parties are morally competent, then, this process will reflect two persons’ perspectives. Even if the overall input arises from millions of such pairs, however, that would hardly guarantee that the ensemble will take into account the perspectives of all those affected. Consider, for example, a case involving the obligations of medical researchers to provide ancillary care—​medical care that is not required by doing the study safely or soundly—​to adolescent study participants serving as normal controls in a trial of a drug for a developmental disorder. As I have modeled the input stage, any fuller determination of what is required by way of ancillary care—​currently a matter that is considerably unsettled in practice and in the documents that are

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taken to regulate the ethics of medical research (Richardson 2012c)—​will be worked out between the researchers and the participants. Providing ancillary care will tend to make these trials more expensive, and hence, to some marginal extent at least, make it harder to generate effective new drugs. Yet because the normal subjects serving as controls are not suffering from the disorder, they do not share the interests of those who do. While the researchers will tend to care about the interests of those with the disorder, they have their own distinctive perspective. Accordingly, anything worked out between the researchers and these normal subjects will not yet reflect the perspective of those suffering from the disorder—​ clearly an affected group whose perspective ought to be taken into account. As this example illustrates, the input stage, even when operating as it should, might well fail to take account of the interests of all those affected. Further, it may turn out that a candidate innovation so generated is selected by a process that continues to be driven by the input level’s bilateral consideration of the counterparties’ interests and perspectives, not by a properly inclusive set of interests and perspectives. In medical research ethics, given the existing umbrella organizations that facilitate the selection process, it is unlikely that the interests of disease sufferers would be ignored, but it is easy to imagine convergence occurring despite serious failures of inclusion. Hence, the selection stage also might fail to represent the interests and perspectives of all those affected. I am not certain that the legitimacy of the process should be taken to imply that they must be at this stage; but I am certain that for the overall process of exercising moral authority to proceed legitimately, and hence come to fruition, it must be duly responsive to the perspectives of all, at least by the ratification stage. Although insistence on “the complete inclusion of all those affected” is another hallmark of Habermas’s account of abstractly universal moral reasoning (2003, 47), this requirement also can be defended by appeal to a much less radically idealized account of moral reasoning. One might object that some people, due to vice that is deep in either their personalities or their circumstances, ought not to have a voice in the reasoning of the moral community. This suggestion, however, goes against our fundamental belief in the moral equality of persons. As I affirmed in §2.1, all persons have equal status in the moral community, articulated though it is. This fundamental belief considers persons fairly abstractly—​on my account, for instance, as bearers of claim-​rights or directed duties, and thus as beings who interact with one another in a changing web of directed moral relationships. A moral person does not lose her or his right to a voice in the moral community’s reasoning by behaving badly or having a vicious character, views, or life situation. There is admittedly something distinctively liberal to this thought, but it is not a facet of liberalism that should trouble anyone. The claim is not that

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human selves are to be understood as being radically distinct from their concrete commitments.14 And in any case, the claim, here, is not a descriptive one about human nature, but rather a claim that a person’s fundamental status as a moral equal does not vary with the viciousness or virtuousness of his or her deeds, social place, or stance. Rawls illustrated a parallel point about fundamental political rights by reference to Saul of Tarsus’s conversion on the road to Damascus: on any acceptable political conception, Rawls (2005, 31) wrote “such a conversion implies no change in our public or institutional identity.” Similarly, in morality, while wrong actions and vicious traits can make one liable to punishment or other sanctions, they cannot erase the fact that one is a person—​a member of the moral community. In discussion that has the potential effect of more fully determining the content of morality, all persons have a general right to be heard. There is no moral authority to whom ultimate deference is owed. We are the only moral authorities; and, in the end of the day—​so, by the ratification stage—​all who care to be heard must be heard. Thus, we must interpret the phrase “all those affected” broadly. I have cast the dimensions of generality and inclusiveness as potentially arising at any stage of the process of specifying new moral norms from the first introduction of candidate norms through to the ratification stage, and as persisting once introduced. By contrast, the dimension of deference to claimed authority need not enter at all and is far less likely to be passed along to downstream stages. For instance, there are good, although rebuttable, social reasons why many conscientious decisions by parents regarding the upbringing and the competing claims of their own children are respected as authoritative with respect to their own children. This is to respect them as particular decisions, not as general ones. A social process moving toward a generally accepted norm regarding the treatment of children, however, might well not regard any of the parental decisions that it takes as inputs as being in any way authoritative regarding what general norm to adopt. What about the upshots of the convergence stage? Any selection process that occurs within that stage—​whether centralized or decentralized, explicit or tacit—​might end up being taken to be morally authoritative by people, even though it is not. (That it is not is what is meant by calling it “de facto.”) Even if such claims to authority are made, it should be possible for people to ignore them at the ratification stage and to revert simply to considering the issue on its merits. Hence, the picture is that the initial input stage, which involves conscientious decisions that are authoritative but of merely particular jurisdiction, 14. Cf. Sandel (1998, 87–​95). In the Aristotle-​inspired psychology elaborated and defended in §8.3, I will argue that relatively thickly understood commitments constitute each person’s conception of the good.

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might or might not be treated as such in the remainder of the process, and that the convergence stage has no claim to authority of its own that needs be respected at the ratification stage.

6.3 A Model of Embodied, Joint Moral Reasoning Having thus surveyed the range of possible variations in these three crucial dimensions of embodied moral reasoning within an articulated moral community—​generality, inclusiveness, and deference to purported authority—​ I am now in a position to set out a simple account of the kind of moral reasoning that should occur in the process of establishing a new moral norm. Its key points are as follows. First, moral reasoning remains a form of reasoning, as glossed previously:  responsibly conducted thinking—​a gloss that may perhaps suggest a monological picture, privileging the lone reasoner, but does not imply one. Second, thinking of reasoning as responsibly conducted thinking puts any account of interpersonal reasoning under pressure to meet basic standards of openness (as opposed to hiddenness or covertness)15 and explicitness (as opposed to mere tacitness) that we might be able to relax in the case of monological reasoning. Third, any deference to authority poses various kinds of obstacles to meeting these standards of openness and explicitness. Fourth, the requirements of generality and inclusiveness, which must be met for the reasoning to count as moral reasoning, may be holistically met by the overall social process without needing to be met by each of its parts. Earlier in this chapter, I glossed reasoning as a form of responsibly conducted thinking, one in which the reasoners attempt, on the basis of their assessments of the relevant reasons and any requirements of structural rationality, to reach a well-​supported answer to a well-​defined question. I further glossed moral reasoning as a species of practical reasoning—​reasoning directed at deciding what to do and, when successful, issuing an intention. In the foregoing discussion, I have referred to various constraints that are important to moral thinking being responsibly conducted. It should be sincere, conscientious, and conducted by someone sufficiently empowered to have real incentive to avoid wishful thinking. The reference to “reasoners” in the plural in my gloss of “reasoning” left ambiguous whether reasoning could ever be a properly joint effort. It could be taken simply to refer to the possibility that many individuals reason, independently, to their own conclusions about a given question. As is now plain, however, I view

15. I avoid using the term “publicity” because of its unavoidable connections to the political institution of the public, which is not central to morality as such.

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moral reasoning in an articulated moral community as a joint enterprise involving a complex division of labor. I must thus address a potential challenge to viewing reasoning, so glossed, as a joint enterprise. The concept of thinking being a psychological one, it may be thought that including this element in the gloss of reasoning is at odds with the possibility of joint reasoning. The paradigmatic thinker sits alone, her chin propped on her forearm. Individuals think, it might be said, whereas groups of individuals converse. In an effort to resist the monological models of reasoning that are dominant in economics, rational-​choice theory, and elsewhere, Anthony Laden (2012) develops an account of social reasoning that avoids any appeal to the psychological categories of thinking or thought and instead builds a multilayered account of conversation. This focus on conversation is a useful corrective to overly individualistic understandings of reasoning. Tellingly, however, Laden is forced to recognize that his social, conversation-​based account of reasoning does not provide an exhaustive account of reasoning: monological reasoning, by one individual, and perhaps about a question of concern only to that individual, still goes on (Laden 2012, 9). Given that social reasoning and individual reasoning both occur, do we need to settle whether there any relation of conceptual priority between them? To address this question, we first need to attend to the relation between reasoning and explicit inference-​drawing. Some philosophers hold that an individual can reason subconsciously (see, e.g., Schmicking 2007, Harman, Mason, and Sinnott-​ Armstrong 2010). Although, in the end, the issue may be a terminological one, I am inclined to think that all reasoning—​whether monological or dialogical—​is explicitly expressed thinking.16 It is natural to think that individual reasoning will involve expressing the relevant sentences to oneself (Broome 2009). To count as reasoning, the sequence of thoughts must be appropriately orderly (Richardson 1994, 31; Richardson 2013b). As Gilbert Harman (1986) convincingly argued, however, it will not do to attempt to model that orderliness simply in terms of deductive logic. We might instead attempt to account for the order essential to reasoning by reference to a broader conception of inference. The trouble with this route is that the notion of inference is itself too contested and shifting to be of much use. More fundamentally, there remains the crucial fact highlighted by Harman and, before him, by John Dewey’s account of practical intelligence:  As reasoners, we retain the freedom to change our minds—​to rethink our views and revise our commitments. 16. I am interested, in other words, in what Broome calls “active reasoning” (2013, 208). He there says that “some automatic processes that happen in us might be classed as passive reasoning, but I am not interested in those.”

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One person’s modus ponens can become, on reflection, that same person’s modus tollens. Although philosophers have attempted over the millennia to offer reductive criteria of reasoning—​a recent case being the logical positivists of the last century—​such efforts seem doomed to fail. It accordingly seems difficult to understand reasoning except nonreductively, as one kind of activity conducted by reflective individuals (Rawls 1999b, 365; Richardson 1994, chap. 8). This difficulty that we face with giving an explicit, criterial account of reasoning seems to be equally serious whether we attempt to begin with a single individual’s thinking or with social or group thinking. The concrete norms of orderly thinking that are salient in these two domains will probably not entirely overlap. In conversation, considerations of respect and politeness, for instance, put a special premium on uptake that is not present in an individual’s case (Laden 2012, chap. 4). Regarding individual thinking, we might demand, if not expect, a somewhat greater degree of coherence. But because we are doomed to accept a certain degree of looseness in our account of reasoning, these differences of relative detail between social and individual thinking will recede in importance. It will accordingly not make that much difference if we start with an account of individual reasoning and attempt to extend it, mutatis mutandis, to the social, or whether we start with an account of social reasoning and attempt to extend it, mutatis mutandis, to the individual. Because the process of reasoning that we are here are aiming to reconstruct is a social one, it is helpful to start with a gloss of reasoning that is somewhat more at home in individual reasoning. Given that the social process that I have laid out includes a stage that involves two people working things out together and a stage of collective ratification, some important place for emphasizing mutual responsiveness and the uptake of one another’s reasons enter that way: not by virtue of the working understanding of reasoning as such, but as normatively necessary elements of the phenomena being described. Retaining the focus on responsibly conducting thinking, then, which is conceptually easier to anchor in individual psychology, helps us focus in a salutary way on ways in which social processes of thinking are likely to fall short when considered as purported cases of joint reasoning. With these methodological reflections in mind, we may return to the three types of joint moral reasoning that are involved in moral innovation, according to the three-​stage model. These are, again, (1) the bilateral moral reasoning of the counterparties, as they work things out together at the input stage; (2) the moral community’s joint moral reasoning at the ratification stage; and (3) the joint moral reasoning of the overall process, including the selection aspect of the convergence stage, as that is reconstructed in the ratification stage. The first two of these call for different treatment than the third.

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The reasoning of the first two types—​bilaterally between the counterparties and multilaterally among the members of the moral community—​can be thought of in a way that is unproblematically explicit (as opposed to implicit) and open (as opposed to hidden or covert). In the case of two parties working things out together, the reasoning will be fairly explicit and open simply because it is just not that hard for two people who are otherwise interacting to exchange reasons explicitly, and difficult for them to settle on a decision without being at least somewhat explicit and open about their reasons.17 In the case of the ratification stage—​as I will set out more thoroughly in the next chapter—​the ratification cannot be accomplished unless the reasoning is open and explicit. In the case of the third type, by contrast, the problem of explicitness and openness must be more forthrightly faced. Cases of this type reflect that fact that, as part of the ratification stage, the entire three-​stage process needs to be reconstructable as an instance of joint moral reasoning. Here, there are two principal sources of difficulty: the possible tacitness of the selection process and the role that special moral authority—​and, possibly, deference even to merely purported moral authority—​plays in the process. In the first two contexts (the input stage and the ratification stage, each considered by itself ), because we can count on at least a modicum of explicitness and openness, the potential defects of joint moral reasoning that are most salient are those fingered by social accounts of reasoning. I will single out three of these. First, there is the problem of violence.18 Violence or intimidation in interpersonal exchange tends to undercut joint reasoning. To be sure, there are many nice questions here. Warring parties, surrounded on all sides by the use and the threat of force, can jointly reason their way toward a peace treaty. Yet it seems uncontroversially true that to threaten the use of force is not to offer a reason, but instead to do something quite alien to offering a reason. Accordingly, for a peace negotiation to count as an instance of joint reasoning would depend on a delicate effort to locate a shared end (peace?), and for each party to take realistic account of the possibility of renewed bloodshed without doing so in a way that is designed to intimidate or manipulate the other side in the way that threats typically do. A second defect likely to arise in joint reasoning is epistemic injustice. As Miranda Fricker (2007) has developed this idea, it centrally involves the powerful

17. I do not mean to imply either that the explicit communication must always be verbal or that any explicitness will tend to be complete. 18. Habermas (2003, 37) stressed the importance of avoiding violence in the same breath as putting forward the formula—​above resisted—​about the “unforced force of the better argument,” insisting on “a non-​violent context”; however, my grounds for resisting the former commitment do not support resisting the latter.

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being accorded more credence than they deserve, and the weak being accorded less than they deserve. This concern, of course, is especially salient and difficult in moral reasoning, in which each person ought to be accorded equal status—​one that, at least as a default matter, grants them each equal credence on all moral issues. This ideal both heightens the importance of epistemic justice in the moral domain and complicates thinking about what it requires by introducing a factor distinct from reliability. Clear epistemic injustices might stem from many different kinds of power: political, economic, and cultural power, for instance. And these distortions might take importantly different forms. They might simply be de facto, with it turning out that a group discussion or decision-​making process simply has not granted people the level of credence they deserve. More insidiously still, these distortions might be backed by effective social norms, granting them a de jure basis, or something closely analogous. Where there are social norms that sanction women for speaking up about issues of political morality or that wholly dismiss the views of those with Down syndrome, for instance, there is an epistemic injustice that is attributable, not merely to the outcome of social discussion, but to the social norms guiding it. Social meanings lie in between the de jure and the de facto, shaping moral and evaluative presuppositions in tacit but powerful ways (Anderson 1993, Haslanger 2014). Epistemic injustice can be embodied in social meanings, as well as in the ability of coalitions of the powerful arbitrarily to control the outcome of joint discussions. The latter is an epistemic case of the type of domination described by Pettit (1997): the ability to interfere with others arbitrarily or unchecked. It seems necessary, in order to block these kinds of epistemic injustice, to keep disparities of power within just bounds.19 As Catharine MacKinnon puts it, “when you are powerless, you don’t just speak differently. A lot, you don’t speak. Your speech is not just differently articulated, it is silenced” (1987, 39; cf. Laden 2012, 126). The third defect to which joint discussion is prone, and which can disqualify it from counting as an instance of joint reasoning, is a lack of sufficient mutual attunement and sufficiently open-​minded responsiveness. Mutual attunement and open-​minded responsiveness can be analytically separated, of course, but they strongly depend on each other in practice. The aspect of open-​minded responsiveness is necessary to preserving the practical intelligence of the joint reasoner. As I have emphasized in §§1.1 and 3.5, openness to changes in view, to reconsidering

19. As Laden (2012, 124) notes, “[W]‌hat renders an exchange of words under conditions of inequality not a genuine conversation is not always something that can be read off the transcript.” And see Richardson (2002, chap. 6) on the importance of granting citizens equal influence in democratic deliberations.

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one’s beliefs and commitments, is the hallmark of the practically intelligent agent. Insofar as a deliberator is closed to such reconsideration, that deliberator’s practical reasoning is arbitrarily truncated. To be sure, no reasoning can get going without taking for granted certain starting points, but initially taking things for granted is not the same as being unwilling to reconsider them on the basis of considerations that arise. In order for joint deliberation not to be similarly truncated, all the participants need to be similarly open-​minded about their views and commitments on the basis of considerations that arise. This must include the considerations raised by others. Further, in many instances, being appropriately open-​minded is necessary to understanding properly what the other is trying to say. In this way, open-​mindedness depends on attunement. And one who is insensitive to an important range of considerations—​such as those that are raised by others, or a certain class of others—​cannot be counted as truly open-​minded. Mutual attunement, of the relevant conversational sort, is a demanding ideal. As Martha Nussbaum (2010b) has argued, it cannot be modeled adequately as a form of mutual respect. This could embody itself in a frosty and distant entente. Rather, attunement must be understood as involving a form of love that seeks a good outside of oneself. We readily recognize this requirement as an element of modern ideals of marriage (Vogler 1998; Laden 2012, 123; Ebels-​Duggan 2009), which maintain a romantic strand, but it also applies more broadly (Richardson and Bohman 2009). Something closer to love than to respect is needed to help motivate a sufficient well-​disposedness to others in order to be well attuned to their contributions to joint discussion. Flexible adaptation of one’s perspective—​ and so, open-​ mindedness—​ is needed so that mutual attunement can be maintained as the conversation takes unexpected turns. Thus, a combination of open-​mindedness and mutual attunement is needed to motivate continued participation in a long-​term and open-​ended joint project. A  marriage is one such arrangement; working out together the fuller determination of morality is another. In thus singling out the potential defects of coerciveness, epistemic injustice, and a lack of open-​minded mutual attunement, I do not claim to have covered all the important defects that might damage a joint discussion’s claim to count as an instance of responsibly conducted thinking, let alone one satisfying the further conditions applicable to moral reasoning. I have previously highlighted sincerity and conscientiousness and would reiterate their centrality in the present context. Students of Jean-​Paul Sartre, influenced by his discussions of bad faith, might doubt that sincerity offers a safe route to authenticity. The waiter who says to himself, “I am a waiter,” and thus enacts the role of waiter with exquisite precision and superlative intelligibility, may thus well satisfy the conditions of agency

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put forward by J. David Velleman (2009), but he is said by Sartre (1992) to fall into bad faith by purporting to assert some deep metaphysical truth about his essence—​an assertion that is in fact false. I am not sure why an ordinary person should be interpreted as attempting to assert any such metaphysical fact, but, in any case, there is another way to escape this Sartrean trap, which is to focus on an effort of practical reasoning. In practical reasoning, the aim is not, in the first instance, to discover who one is or what is ultimately true, but rather to decide what to do. The sincerity and conscientiousness that I have laid down as presuppositions of the legitimate exercise of moral discretion pertain to decisions about what to do, in situations where moral issues are at stake. The agents involved are sincerely and conscientiously aiming to work out what they ought to do, for the sake of deciding what to do. For this purpose, it is generally unnecessary to assert that the metaphysical or context-​and deliberation-​ independent facts settle what ought to be done. On the contrary, it will suffice, after a sincere and conscientious effort to review the relevant considerations, to say, “In light of the considerations that you and I have brought forward, it seems to me that what we morally ought to do is X, because Y.” In this chapter, I have sought to sketch a conception of moral reasoning that coheres with the three-​stage account of moral innovation. This can serve to help interpret its requirements that the participants, at the various stages, proceed (or can be reconstructed as having proceeded) via a process of joint moral reasoning. For this purpose, I have argued that instead of taking up the highly idealized and abstract account of moral reasoning common in some corners of philosophy, we should work with an understanding of moral reasoning that involves interpersonal virtues such as open-​mindedness and attunement while holding on to generality. As I have explained, there is reason to think that responsibly conducted moral thinking—​and thus moral reasoning—​in an articulated moral community not only can but should take account of morality’s jurisdictional empowerments. In so doing, it can respect individuals’ authority to make particular decisions without taking them to be authoritative as to general principles. Whereas the most important obstacles to joint moral reasoning in the input and ratification stages are these ones just canvassed, which are ones that distinctively emerge with regard to social reasoning, the importance of being able to reconstruct the overall, three-​stage process as one of reasoning, which is a crucial prerequisite of ratification, poses different challenges, arising from limited explicitness and openness. Before I can sensibly take up these difficulties, however, I need to characterize further the way in which the overall nature of the three-​ stage process needs to be in view at the ratification stage. This issue, and others pertaining to the ratification stage, is taken up in the next chapter.

7

R AT I F I C AT I O N O F   N E W M O R A L   N O R M S

To be legitimately adopted, and hence to occur, any objective moral innovation must be an object of reflective acceptance by the moral community.1 The three-​stage process that I have described, whereby new moral content can be elaborated in an articulated moral community, begins with an input stage involving reflective, conscientious deliberation on the part of those in directed moral relationships, and resulting in generating a candidate moral norm of merely particular jurisdiction. In the second, convergence stage, no condition of reflective acceptance is imposed, allowing the relevant social practices to evolve towards de facto uniformity in a variety of tacit ways. It is not that the process of selection and convergence cannot be explicit and reflective; it is just that there is no need for it to be. It will usually not be. For the overall result to count as having been adopted by the moral community, and hence to generate a new moral norm, however, reflective acceptance must be superadded to the overall process. This is the role of the third, ratification stage. So to conceive of the ratification stage is to view it as a mode of reflection situated in relation to the outcome of actual historical processes. Consonantly with this, we should view the ratification stage, itself, as involving socially embodied forms of reflection. I will begin this chapter with an account of the relevant sort of reflective-​acceptance condition, which must reach across the whole of the moral community. Its role is to support the claim that, at a given time, the moral community reflectively accepted the norm in question. This way of describing the condition, while in keeping with this work’s characterization of the three-​stage process as a social process unfolding in real time, gives rise to the objection that it does not

1.  I  am grateful to an anonymous reviewer for Oxford University Press, whose comments on a prior version of this chapter led me fundamentally to revise its approach.

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give voice to future generations. Before proceeding to the further conditions of ratification, I will briefly address that objection. The further conditions are designed to help ensure that the moral community’s reflective acceptance of a new norm is linked to the two prior stages in the right way so that the overall process can count as one in which the moral community adopts a new moral norm. These additional conditions are of two types. The first type requires awareness of what has gone on in the two prior stages, while the second type requires critical reflection on the two prior stages, which can hold debunking explanations at bay and provide a reasonable basis for reconstructing the whole process as one of collective reasoning.

7.1 Mutual Recognition of Acceptance Assume that a candidate new moral norm N has been generated by the input stage in the way described in ­chapter  3, and that shifts in social practice have generated de facto, global social convergence on N in one of the ways described in ­chapter 5. This already implies that, as a practical matter, tacit acceptance of norm N by individuals is widespread. Conceptually, we can distinguish two distinct steps necessary to move from this basis to acceptance of the norm by the moral community. First, reflective awareness of the social convergence needs to spread among individuals so that they become aware of what they tacitly accept. Second, individuals need to become mutually aware of each other’s acceptance of N, so that they can truly say, “We accept N.” In practice, these two steps might be taken in one leap, as it were. More significant than whether these two steps are made at once or seriatim is whether they are made by an unbounded group of individuals, and so by the group of persons acting as persons—​as members of the moral community. To develop an appropriate reflective-​acceptance condition, we need to unpack these desiderata, looking first at what it means to accept something as members of the moral community, and then at the idea of mutual acceptance itself. Building suggestively on Immanuel Kant and Emmanuel Lévinas, Rainer Forst has argued persuasively that a fundamental implication of morality is that we socially operate in a shared “space of justifications” (Forst 2012, 59).2 Here, “justification” is meant not in the Rawlsian sense that implies addressing

2. Where I speak of embodying reflection in specific moral practices and institutions, Forst speaks of a somewhat more abstract and general form of embodiment in our practices of giving and asking for reasons. Taking account of this embodiment is sufficiently fundamental, in his view, that the result of doing so is “turning Kant, so to speak, from his transcendental head onto his social feet” (Forst 2012, 48).

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a conflict or disagreement, but more generally as offering reasons for the permissibility of engaging in conduct—​or supporting practices or institutions—​that affect others.3 If we assume that this observation is correct, that has two important implications for the present account. The first implication pertains to the new moral norm that is the outcome of the process. For it to attain the status of a moral norm, it must take its place in a space of justifications that is shared by moral persons in the sense that they all are able to operate within it. This means that any new moral norm must be one of which people are aware, or which would occur to them were they to face a situation in which it was relevant. This in turn means that the norm must—​in the terms used in §6.3—​be open, rather than covert or hidden. Accordingly, the fact that morality serves people as a shared space of reasons reinforces the importance of mutual awareness of the acceptance of any new moral norm, for that will be important (if not, indeed, literally necessary) for making people aware of it. The second implication of this fact is that the moral community’s acceptance of a new moral norm must be understandable on the basis of this shared space of reasons. For our purposes, we can take it that the shared reasons are proximately provided by the preexisting, validly binding, objective norms of morality and the morally important tasks that they serve. Since my discussion in this chapter picks the story up after the conclusion of the two prior stages of input and convergence, any candidate moral norm N that comes up for potential ratification will have arisen either in relation to a gap in these norms, where none of them applied and yet a morally important value or task was at stake, or else in relation to a conflict between two moral norms. Accordingly, for N’s mutual acceptance to be mutual acceptance of it as a moral norm, it is necessary that people can understand it as a reasonable response to a moral difficulty of one of these two kinds. This means that they must be able to understand it in relation to a background of shared moral principles. In any given case, the relevant background principles will generally be only a small subset of the full set of objective moral principles. This feature of acceptance of a norm as a moral norm will be taken up when we discuss the critical reflection conditions later in this chapter. To arrive at an appropriate understanding of what it means for the moral community reflectively to accept a new norm, we must keep in mind some crucial differences between this book’s project and that of Rawls’s political liberalism. To begin with, our concern here is not limited to the political part of morality. More fundamentally, there is the difference in the relevant idea of justification, alluded

3. Rawls (1999b, 508) characterized justification as “argument addressed to those who disagree with us, or to ourselves when we are of two minds.”

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to previously. For the purposes of arguing that a liberal society may be stable for the right reasons, Rawls (2005, 387) constructs an idea of “public justification” that presumes deep disagreement among citizens and that requires, by definition, justification addressing this disagreement that each reasonable citizen can offer to every other. By contrast, once a process of moral innovation has reached the ratification stage, there is agreement in practice on following the norm in question; and as I have just indicated, I have assumed that there also will be some agreement regarding the relevant background norms. These assumptions are not inconsistent with Rawls’s, for they simply assert that, for the case of the norm in question, the moral glass is half full; but the point is that the remaining task for the ratification stage is not to deal with disagreement. Rather, the point is to bring matters appropriately to self-​consciousness. What we need to explain is how the moral community can settle on the adoption of a new moral norm that is already being generally followed, not how it can resolve a disagreement. A related point is that we should not take too seriously the seductive analogy between morality and politics. Although there may be moral grounds for concluding that we ought to rule ourselves politically—​perhaps in territorially limited democracies—​there is no imperative that morality as a whole serve us as a tool of self-​rule. Indeed—​setting aside Kant’s distinctive equation of acting in accordance with the moral law and acting in accordance with the idea of self-​rule or autonomy—​there are at least three reasons why it would be a mistake to cast morality as such as marking out a sphere of collective self-​rule.4 One is that morality in general—​or, more precisely, morality except insofar as it is specifically political in its application—​is not appropriately enforced through coercive sanctions. Another reason, reflected in this book’s title quest, is that the moral community does not express its will in any formal way remotely resembling what’s done in democratic settings. Finally, a third reason that the idea of collective self-​rule is out of place in morality in general is that morality in general, as we think of it, and as I have assumed that it is, is a domain principally structured by objective universal principles.

4. Although I cannot argue the point here, I believe that Kant’s attempt to capture the whole of morality in terms of the idea of acting in accordance with the idea of autonomy fails. As my entire approach has obviously presupposed, I believe that we are answerable to irreducibly plural and mutually incommensurable moral demands and concerns. I agree with those critics of Kant who, going back at least to Hegel, have held that the idea of autonomy will not serve as the basis for a test of moral validity in the way that Kant hopes. To my mind, Engstrom (2009) provides one of the best reconstructions of Kant’s test of validity (or of the permissibility of acting on given maxims); but even on his reconstruction, it seems that only a small portion of what we recognize as moral requirements is capturable on the basis that he develops.

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This contrast between morality and politics constrains the appropriate role of authority in the moral domain. Writing about principles of political morality, Rawls (2005, 388n.) explains in these terms why citizens do not reach reflective acceptance of them via formal, corporate procedures: “[T]‌here is no political body that acts by vote on the political conception [of justice]. This is contrary to the idea of the reasonable. The conception of political justice can no more be voted on than can the axioms, principles, and rules of inference of mathematics or logic.” If we generalize this thought to morality as a whole, we have three reasons why moral norms are not to be thought of as being accepted via anything like formal, institutional procedures: These procedures require coercion for their enforcement, which is uncharacteristic of morality; the moral community does not express itself via any privileged set of institutions; and the substantive content that binds the moral community together is generally not subject to voting or other procedural determination. These reminders about the distinctive task of the ratification stage and the contrasts between morality and politics—​or between morality as such and morality’s political implications—​provide reason for thinking that reflective acceptance by the moral community does not require unanimity. If the problem were to account for how social stability of the right kind could be achieved despite deep disagreements, then unanimity (or unanimity among the reasonable) would be a relevant standard and aim; but that is not the problem that we are addressing. If we were limiting ourselves to the moral principles applicable in politics, then various formal decision procedures, including a unanimity rule, would recommend themselves; but for morality as such, formal decision procedures, including a unanimity rule, are out of place. Since, however, the moral community is the community of all persons, mutual acceptance by the moral community must extend broadly to morally competent people.5 It must extend to morally competent persons of all nations, races, ethnicities, cultures, educational backgrounds, and gender orientations. We might be tempted to say that it should extend to all groups of people, but the problem with this suggestion is that some groups of people have points of view inherently and wholly inimical to morality: racists and sociopaths, for instance. Other groups of people, while being defined in terms of a specific morally illicit activity, may, as members of the group, be able to interact morally with others when not on the job, as it were. Kukla (2014) has argued that pirates are such a case.6

5. The concept of “moral competence” was defined in §3.1. 6. As W. S. Gilbert has observed in 1879, pirates have a job to do, just as police officers do; and when they are off work, they are as likely as anyone else to lie “a’basking in the sun” and engage

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There is no need to assure that groups of people whose main activity or whose defining trait implies that they violate certain objective moral requirements join, as members of that group, in the mutual assessment of any norm that (in itself or in its justification) presupposes the validity of those moral requirements. For instance, it is not necessary that pirates, as such, join in the endorsement of a new norm pertaining to reparations owed by pirates. Since all the individual pirates are also members of other, morally unproblematic groups (gender groups and ethnic groups, for instance), there is no need to include them as pirates in the proposed group-​articulated conception of the moral community’s reflective acceptance of a norm. Dissent on the part of such disqualified groups does not negate the moral community’s acceptance of a norm. Reflective acceptance that extends to all nondisqualified groups in this way, I will call “broad and inclusive.” Another implication of the idea of the reflective acceptance of a new moral norm by the moral community is that those accepting it must consider it as a purportedly binding universal norm. They must consider its fitness as a universal law. This emphatically does not mean that they actually have in their back pockets an a priori test of whether a norm is fit to serve as a universal law, or even that they think they do. Rather, what it means is that to reflectively accept a norm as one that well articulates the requirements of local etiquette or the values of a hegemonic culture is not to reflectively accept it as a moral norm. To accept a moral norm “as a moral norm” carries this implication of accepting it as a universally binding one. Having in these ways unpacked the idea of what it is for people to accept a norm as members of the moral community, we can turn to the idea of collective reflective acceptance itself. Whereas in the context of the former effort, it was important to remind readers how my project differs from that of Rawls’s political liberalism, in the context of the latter, it is important to point out that my project differs radically from that of philosophers who attempt to construct a theory of convention on the basis of a thin account of rationality. Let me explain. Philosophical efforts to account for social conventions commonly attempt to proceed on the basis of a thin account of rationality—​one that treats it as narrowly instrumental. In giving accounts of mutual awareness, theorists traveling light in this way often invoke the idea of common knowledge, as it emerged in David Lewis’s theory of conventions (Lewis 1969; cf. Gilbert 1989). Game theorists and others have focused considerable attention on situations in which

in other “innocent enjoyments” that may, as Kukla argues (2014), require negotiating the space of moral reasons.

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thinly rational agents are each deciding independently and where much depends on what each knows about the other. In so-​called pure coordination games, in which there are two equally good ways of coordinating, one kind of knowledge that is crucial is what each knows about what the other knows. In this context, “common knowledge that p” among a given population came to be defined as centering on the property that each member of the population knows that every other knows that p. This conception is extremely demanding. Ken Binmore has argued that building the idea of common knowledge into that of conventions “is so restrictive that it excludes almost all conventions on which actual societies rely . . .”; he suggests that “[t]‌he fact that conventions like driving on the right or speaking French operate very successfully in spite of not being common knowledge in the societies that have adopted them” is reason to abandon the Lewisean conception of convention that builds in this idea of common knowledge (Binmore 2008, 26). This seems to be a strong reason, from within the game-​theoretic approach, not to deploy this conception of common knowledge. Be that as it may, it is strong reason not to invoke such a common-​knowledge condition in interpreting the idea of mutual acceptance relevant to the moral community’s possible acceptance of new moral norms. For one thing, if Binmore is correct, doing so would clash with our assumption, in this chapter, that a norm, N, has already become the object of a new social convention. More generally, morality, as we experience it, builds in various other social conventions. In §I.4, I  gave the example of our conventions of promise-​making. These conventions may possibly have contributed to an earlier addition of a new moral norm by the moral community; but recognizing their moral significance does not depend on believing that. In addition, as speculatively reconstructed in §3.3 and §3.4, many other aspects of morality’s initial moral elaboration of directed duties seem likely to have depended on conventional ways of dividing our labor when taking care of morally urgent tasks. In any case, the central reason that I am not driven to a factual supposition as extreme as a common-​knowledge condition is that I  am not attempting to account for moral change as a result of thinly rational individuals deciding independently. As I will explain more fully in §8.4, I start from individuals with rich normative commitments, including moral ones. The account defended here starts with the preexisting objective norms of morality. In giving an alternative characterization of mutual acceptance, I nonetheless take some inspiration from Binmore’s understanding of David Hume’s account of social convention. As Binmore reads Hume’s pioneering account of convention by means of two-​party cases, it does not invoke a common-​ knowledge condition (Binmore 2008, 18). What matters, Hume says (1978,

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III.ii.ii, 490), is that the relevant common sensibility “is mutually express’d, and is known to both . . .” This is how we actually make appointments by email, even though attempts to formalize such efforts using the game-​theoretic concept of common knowledge run into trouble (see, e.g., Rubinstein 1989). Arguably, subsidiary helper norms arise as to what counts as accepting a plan in a given context. If our everyday appointments can go forward in the confidence that arrangements have been made, so, too, can the moral community’s reflective acceptance of new moral norms that are already the object of convergent social conventions. Just as acceptance of a new moral norm does not have to be unanimous, neither does knowledge of it reach literally everyone. Adapting Hume’s formula for explaining social convention to the case of broad and inclusive acceptance, what it requires is sufficient explicit expression of the acceptance of a norm, N, that is de facto the object of convergent practice, to produce broad and inclusive awareness of the norm’s reflective acceptance, if that is forthcoming. Presumably, in most cases this mutual awareness will develop in two steps. In the first step, there will be mutual awareness of the norm, N, that is the object of newly convergent social progress.7 The second step, building on the first, would arise only if broad and inclusive acceptance of this norm were reached and would bring broad and inclusive awareness of this acceptance. We can now put together the elements of the condition of mutual recognition of acceptance, so as to state the following condition: Mutual recognition of acceptance:  For a candidate moral norm N to become a new, objective norm of morality, (i) it must be the object of broad and inclusive acceptance of N as a moral norm among the existing competent moral persons, who assess it on the basis of shared, relevant, objective moral principles; and (ii) the existence of this broad and inclusive acceptance of N as a moral norm must be the object of broad and inclusive awareness among the existing competent moral persons. This condition captures the culminating moment of a moral norm being accepted as a new moral norm. It describes broad and inclusive, and broadly and inclusively aware, acceptance by the competent persons who exist at a given time. What, though, about the competent persons who are not yet alive? 7. I here gloss over a number of difficult hermeneutic questions about interpreting the convergent practice, called to my attention by Anne Jeffrey.

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7.2 The Problem of Future Persons It will be objected that nothing that happens at a single time can count as acceptance by the moral community; for the moral community is the community of all persons, and this extends over time, including within it all future persons. As I turn to addressing this objection, I begin my noting that it is not obvious that the moral community, as I have defined it, must include all future persons. In §2.4, I defined the moral community as “the open-​ended set of all individual persons who can wrong or can be wronged by one another.” This relational formulation is what gave rise to Thomson’s challenge about how the moral community could have the universal reach essential to morality. This challenge was answered in §4.3 by emphasizing the open-​endedness of the moral community as so defined, which results from the possibility of dialogue. This case for open-​ endedness, however, extends only to contemporaries, since only contemporaries can engage in dialogue with each other. If this definition of the moral community were formulated as a conjunction rather than as a disjunction, that would likely limit it to a community of contemporaries, for it seems highly doubtful that one can wrong people who are no longer living. This is not to deny that one can act wrongly by failing to honor promises to them, by slandering them, by desecrating their graves, and in other ways. Although dead people’s estates have legal rights, dead people do not seem to have moral rights. Let us assume that no one can wrong someone who has died. Even so, the disjunctive form of my definition of moral community might allow the moral community to extend intergenerationally. It will do so if people can wrong future people. Given the nonidentity problem—​the fact that different people will be conceived and born in different alternative futures—​however, it might be argued that we cannot wrong people who have not yet been conceived (Parfit 1984, chap.  16). If, had we acted otherwise, they would not have existed, then our action cannot harm them in the standard comparative sense (see Shiffrin 1999; Harman 2009; Earl 2017). If it cannot, then it becomes debatable whether we can wrong future people. It might be that while we have a duty not to lay waste the resources that our descendants will need to survive, we do not owe this duty to any specific individuals. Yet this conclusion, too, has been challenged (Kumar 2009). Since I do not wish to rest my general conclusions about the conditions of validity of moral norms on a controversial position on such first-​order moral matters, I will assume for the purposes of discussing this objection that the moral community extends intergenerationally, meaning that at any time, it includes all persons who will ever have lived.

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One immediate implication of this assumption is that a large set of members of the moral community—​namely, those already dead—​are necessarily unable to participate in the process of ratifying a new moral norm. This means that it is not reasonable to interpret the ratification conditions for new moral norms as requiring broad and inclusive acceptance by the group of all moral persons, where that includes people of all generations. To demand this is to beg the question against the possibility of new moral norms being introduced. An independent argument against demanding that the groups reflectively accepting a candidate moral norm include past people is that the dead cannot be adversely affected by its adoption.8 They will come under no new moral obligations. (If there are objective moral norms in place that explain how it is possible to wrong the dead, these will be left in place, providing them continuing protection, by new moral norms, for these simply fill in the gaps left by the preexisting objective moral principles.) Accordingly, if there is reason to conclude that future people must be included in the ratification of a new moral norm, it cannot simply drop out from the purported fact that all moral persons, past, present, and future, must be included. If we look beyond this conceptual point to higher-​ order substantive considerations, we can see a case to be made for both answers to the question of whether future people must be included among the ratifiers. Favoring a positive answer to this question is the fact that, unlike the dead, future people would be affected by the adoption of a new moral norm. It would bind them. Including them, however, would, like including the dead, imply that no new moral norm could ever be ratified. This has the higher-​order or systemic disadvantage that it would prevent morality from generating specific guidance in response to major shifts in social organizations or circumstances, such as the rise of medical research on human subjects or the advent of the four-​generation family. Since, in any case, as I explained in ­chapter 1, I am inclined to see morality as a socially embodied system in which structures of principle help divide the moral labor of carrying out morally urgent tasks, I expect morality to have this kind of adaptive feature, which is important to how morality systematically evolves. Others, however, will see things differently. A more decisive reason against thinking that the moral community’s adoption of a new moral norm would, per impossibile, have to garner the acceptance of all future generations is that we must not overstate the controlling nature of the present’s potential moral power over them. There are both de facto and de jure

8. In addressing the thorny issue of retrospective moral judgment that arises if a new moral norm has been adopted since the time that the action was done, §10.4 will defend the view that it is a mistake to hold that it was wrong on the basis of the fact that the new norm would have prohibited it.

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aspects of this point. Taking the former aspect first, it makes little sense to worry about this way of influencing future people. It is de facto convergent conventions that will tend to control future behavior. This will be true whether or not the norms that they embed gain the ratificatory endorsement of the moral community as it exists at any time. Any such ratification might make it marginally more likely that people are socially sanctioned for violating the new moral norm; yet people can also be socially sanctioned for violating norms that are understood merely as culturally, religiously, or traditionally grounded. Hence, on an issue-​ by-​issue (as opposed to systematic) basis, the present’s power over future people consists mainly of the generation of conventions, which are sometimes quite long-​lasting. The establishment of new moral norms would, by comparison, have a relatively minor controlling impact. De jure, the key point is that future generations could undo any new moral norm. By definition, if there is any timeless core of objective moral principles, a new moral norm is not part of it. Once in place, a new moral norm is objectively binding on all persons, but nothing implies that it is binding for all time. Accordingly, by the very same three-​stage process that we have been discussing for putting in place a new moral norm—​or by something very like it—​any given new moral norm could be rescinded—​or better, undone.9 A new moral norm N that had arisen from a conflict between two principles could be practically erased on the basis of a conscientious specificatory response to a conflict between N and yet another principle. Alternatively, if the possibility of abstracting innovations, mentioned in §I.3, were admitted, we could suppose that future generations could go through the three stages in a way that simply reversed the establishment of N. Like us, people in future generations presumably will not know which moral norms, if any, are of invariant or timeless validity; and, like us, they need not worry about that, but must simply try to act reasonably. In doing so, they, like us, can only do their conscientious best; and just as we cannot consult them about our situation, they cannot get our advice about theirs. The present’s power over the future is not negligible, but, morally, the most important check on this power is provided by the first-​order moral norms that

9. Suppose that the new norm had the form, it is morally required to φ in circumstances C. A literal rescinding of this norm would require acceptance of it is not the case that it is morally required to φ in circumstances C. But this is not a plausible content for a convention, let alone a moral norm that might be accepted (cf. Broome 2013, §15.3). Yet the norm could be undone by the acceptance of the following norm: it is morally permitted not to φ in circumstances C. Recognition that the previous norm had given rise to a problem can be included in the acceptance conditions per the condition of recognition of reasonable input set out in the following section.

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constrain how we affect them. In general, we have moral reason to consider how what we do will affect future people. Because of the open indeterminacy of the future, however, it is difficult to know enough about future generations to think of ourselves as being able to represent their interests in any concrete way (Karnein 2015). Even so, we ought not lay waste to resources that they will need to survive, or destroy the scientific and cultural fruits of civilization that we have attained. We also have duties of justice regarding future generations (Rawls 1999b, §44). In reconciling my account with moral realism, I  have suggested that we suppose that the eternal grounds of morality could include empowering norms. If we take the considerations just surveyed as bearing on what these empowering norms might look like, I see no compelling reason to conclude that they could not empower the community of moral persons, as it exists at any one time, to put in place a new moral norm. If things work in this domain as in all others, future generations will get their turn. As I have so far characterized the role of each current generation, my account of the ratification of new moral norms has simply presupposed that the prior stages of input and convergence were completed. Now, however, we must examine conditions that ensure that the culminating acceptance is linked to those prior stages in the right way.

7.3 Backward-​Looking Awareness The only stage in the process of establishing a new moral norm that authoritatively exercises a power to specify its content is the input stage. The ratification stage, I have suggested, should be viewed as a stage at which the moral community simply adopts or endorses a candidate norm that is already being generally followed. The condition of mutual recognition of acceptance set out in §7.1 implies that each individual accepts the norm in question on the basis of shared, relevant, objective principles. For their collective act of acceptance to be intelligible as the culmination of the three-​stage process, however, there must also be some shared understanding of the basis of this mutual acceptance. Consider the following exchange, based loosely on an actual case: Suppose that the secretary of the Department of Health and Human Services, bothered by how many members of Congress and their spouses are exploiting the proximity of the National Institutes of Health (NIH) by going there to get free medical care, tells the department’s inspector general to deal with this by imposing a restriction that will block their doing so. In response to this suggestion, the inspector general, thinking, “Great—​this gives me the excuse I’ve wanted to ban our researchers from providing medical care to poor Africans, apart from what’s

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already built into the study,” goes on to ban any use of NIH monies on nonstudy-​ related care.10 Intuitively, it seems fair to say that the inspector general did not exactly accept the secretary’s proposal, but instead took the directive as an excuse to run with another idea. Having separated the stage of moral innovation that involves authoritative input from the stage involving reflective acceptance, we need a condition that protects against them coming apart in this way. Given that those involved in the input stage are very unlikely to know—​ and must not believe—​that they are authoritatively filling an objective gap in morality, albeit with merely particular effect, those involved in the ratification stage are also very unlikely to think this. What those involved in the input stage are aware of is that they have faced a moral difficulty and have come up with a resolution of it that they find reasonable. For there to be an adequate link between the introduction and the ratification of a new moral norm, those reflectively accepting it must have some generalized awareness of this fact about how the norm originated. Accordingly, we get the following two conditions: Recognition of reasonable input: For a candidate moral norm N to become a new, objective norm of morality, there must be, among those participating in mutual recognition of its acceptance, both: (i) broad and inclusive awareness of the fact that norm N emerged as a socially convergent norm, at least in large part as a response, thought to be reasonable, to a given moral problem (or set of problems); and (ii) broad and inclusive acceptance that norm N is a reasonable response to this moral problem (or set of problems). Link between mutual recognition of acceptance and recognition of reasonable input: For a candidate moral norm N to become a new, objective norm of morality, it must be broadly and inclusively the case that individuals participating in the mutual recognition of its acceptance do so, in at least significant part, because they appreciate that it emerged as a reasonable response to a moral problem (or set of problems). Satisfaction of these conditions will secure a meaningful sense in which any mutual recognition of acceptance of N is appropriately linked to the input stage, which authoritatively put it on the table.

10. My understanding is that concern with congressional abuse of the availability of free care at NIH, which is in Bethesda, Maryland, actually underlay the imposition of this limitation on the use of NIH monies; but I doubt that the impact of this ban on the medical needs of research subjects in resource-​poor areas was foreseen when it was enacted.

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7.4 Reasoning in the Ratification Stage It is possible that the three ratification conditions already spelled out—​requiring mutual recognition of acceptance, recognition of reasonable input, and an appropriate link between the two—​suffice to characterize the moral community’s adoption of a new moral norm. It might be objected, however, that relying only on this trio of conditions would leave open the possibility that the moral community, while knowingly responding to reasonable and authoritative input at the particular level, would nonetheless be responding with mere passive acquiescence to the de facto convergence in social practice. If that were a fair characterization, that would bespeak two problems. First, passively acquiescing in the outcome of a process of social convergence would imply that the moment of ratification is blind to whatever morally problematic features that process may have involved. Of course, my account of the convergence stage (in §5.1) included a condition holding that convergence on a candidate norm N could not contribute to the adoption of N as a new moral norm if that convergence were the result of coercion or manipulation by those who hold disproportionate power; but this is not the only morally problematic feature that a convergence process might have. Second, passive acquiescence is not equivalent to the affirmative endorsement of the adoption of a policy, decision, or norm; but it is the latter that it is the function of the ratification stage to provide. I will address these two problems in turn. If the ratification stage merely involved the collective’s becoming self-​ conscious about a norm already objectively established, there would not be any need for a further condition. Since, apart from the stipulations just mentioned, I described the convergence process as a merely de facto one, there is indeed a need for this process to be critically vetted at the level of the moral community before any norm arising from this process can reasonably be adopted. Such critical vetting of a broad-​scale social process is work, in the first instance, for the moral community’s intellectuals and critics. The condition to be met on this score, then, is the following: Critical vetting: For a candidate moral norm N to become a new, objective norm of morality, the moral community’s mutual recognition and acceptance of it must be informed by the results of critical reflection, available on a broad and inclusive basis, about the process whereby social practices converged on N. Whereas the point of ­chapter 5’s condition, implying that the only instances of de facto convergence that could lead to the adoption of a new moral norm are

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ones not arising from coercion or manipulation, is to rule out the most egregious moral faults, the point of this critical vetting condition is to ensure that the process of ratification is not merely a passively acquiescent one, but rather extends its rational reflections beyond the input stage (as required by the requirement of recognition of reasonable input) to the convergence stage. The critical vetting condition does this, however, merely in a way oriented toward ruling out certain problems. Now we need to turn to the distinct issue of affirmative endorsement. Here, we come to the reasons for holding, as previewed in §6.3, that those involved in ratifying a candidate new norm, N, must be able to reconstruct the social process of de facto convergence on N as one that could have occurred via defensible reasoning. Especially considering the breadth of the conception of reasoning set out in that chapter, there are many different modes that such a reconstruction could follow. Since we are supposing that candidate moral innovations arise in an articulated moral community with a well-​developed division of moral responsibilities, many of which are attached to specific roles, this reconstruction will often involve understanding the process as being answerable to what Alasdair MacIntyre calls “goods internal to practices.”11 The conscientiousness condition that applies to the input stage in any case ensures that those who fashioned the candidate innovation had moral concerns in mind when doing so. This fact, in turn, raises the hope that, in the ratification stage, it will be possible for people in general to recover or regenerate these thoughts. There is no need for them to be able to find grounds for believing that the process of convergence was actually steered by a consciously rational process. Sometimes, as suggested by the Introduction’s example of Dr. Jones, which included a role for an international association of medical societies, that might happen. Typically, however, this will not be the case. In §5.1, I mentioned the power of evolutionary game theory to explain how rationally defensible results can emerge from rationally unsteered processes. If the motivational commitments of those so interacting include commitments to morally urgent tasks or to moral principles, such a

11.  Cf. MacIntyre (2006, 135–​136):  “[T]‌he formulation of [moral] principles has to begin from a very different starting point from that from which Kant set out. Instead of first asking ‘By what principles am I, as a rational person, bound?’ we have first to ask ‘By what principles are we, as actually or potentially rational persons, bound in our relationships?’ We begin, that is, from within the social relationships in which we find ourselves, the institutionalized relationships of established social practices, through which we discover, and through which alone we can achieve, the goods internal to those practices, the goods that give point and purpose to those relationships.”

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theory could provide a more sophisticated basis for reconstructing the process of convergence as a rational and morally defensible one. The condition needed to assure affirmative rational acceptance by the moral community, rather than simply the avoidance of mere  passive acquiescence assured by critical vetting, is the following: Rational reconstruction: For a candidate moral norm N to become a new, objective norm of morality, the moral community’s mutual recognition and acceptance of it must be informed by the results of successful and reasonably sound efforts at reconstructing the process whereby social practices converged on N as a process of reasoning about how to fulfill morality’s requirements or to carry out morally urgent tasks. Again, since the input stage contained reasoning of this sort, fulfilling this requirement should not prove prohibitively difficult. Since the convergence stage plays a de facto role rather than a normative one, no tighter link between the ratification stage and the convergence stage is needed. This rational reconstruction condition provides for sufficient linkage between the ratification stage and the convergence stage to imply that ratification involves affirmative acceptance of the result of the norm converged upon.

7.5 Ratification: Summing up Without taking the space to restate each of the ratification conditions here, let me summarize how they fit together, referring to them by name. The fundamental condition for the moral community’s ratification of a new moral norm, N, is that it become broadly and inclusively an object of mutual recognition of acceptance. For this acceptance to count as the community’s adoption of N as, in effect, a proposal that arose at the input stage and became the object of convergent social practice, four other conditions must be met. The first two relate to the input stage: it is necessary that there be broad and inclusive recognition of reasonable input that generated N; and, to link this recognition to the mutual acceptance of N, mutual acceptance must occur in significant part because of this recognition. The remaining two conditions relate to the convergence stage, which must be subject to the moral community’s critical vetting and must be susceptible to rational reconstruction by the moral community. The conditions defining the input stage were set out in ­chapter 3, and those defining the convergence stage were set out in ­chapter 5. With the abovementioned conditions defining the ratification stage, I have now laid out the account’s full

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set of conditions for a new moral norm to be adopted by the moral community by the sort of pathway that this book explores. Taken together, they put forward sufficient conditions for it to be the case that the moral community has adopted a new moral norm. With the account now fully spelled out, we can begin to entertain some major objections that may be raised against it.

III

DEFENDING AND EXTENDING THE ACCOUNT

8

R E A S O N S , I N D E T E R M I N A C Y, AND COMPROMISE

Over the last six chapters, I have laid out a conception of a fully articulated moral community. In this community, acting within a division of deliberative labor and moral authority that arises from how special responsibilities are allocated among us, we work out what we ought, morally, to do. In so doing, we sometimes make morality more determinate: Without meaning to, we can fill in some of morality’s previously existing indeterminacies. Central to this conception is the idea that those charged with special moral responsibilities are often called upon intelligently to rethink the obligations or duties in terms of which those responsibilities are spelled out, partly on the basis of the concern or concerns underlying those obligations or duties. When they attempt do so sincerely and conscientiously, they can specify their obligation or duty in a way that specifies the correlative right of another. Those moves, in turn, can become the focus of a social process that leads to convergence upon, and then ratification of, a new moral norm. In this chapter, I address a thematically related pair of objections that target the presuppositions of my account in various ways. I will begin with a metaphysical objection to the idea that morality might contain objective indeterminacies. This objection models the normative bottom line in terms of a set of first-​order reasons that compete with one another solely on the basis of strength.1 In such a picture, it seems, there can be ties, but no indeterminacies. The case I made for moral indeterminacy in the Introduction referred to principles—​or to specific duties and rights. The first objection casts all of these as being grounded on reasons. The second objection, which is focused on moral psychology, is logically independent of the first. Even if there 1. Such a picture of the normative bottom line is offered, at least as an initial argumentative concession, by Joseph Raz, in early work that I will shortly discuss, and by Bratman (1987, 34).

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were objective indeterminacies, it claims, it is implausible to cast individuals as sincerely and conscientiously working out the content of their moral obligations, whether alone or together with a right-​holder, in a way that arrives at new, potentially general moral content. If a person’s moral commitments are basically a function of that person’s desires or preferences, and if these compete with one another simply on the basis of strength, all that working things out can amount to is intuitively balancing competing items. The result of such deliberations, then, is not any new general norm, but simply an indication of which norms prevail in which circumstances (see Pietroski 1993, 502). The third, normative objection, supplementing the other two but dependent on the first, is that even if people could deliberate in ways that purported to work out new moral norms, this deliberation could not be authoritative, for the normative bottom line is settled by the set of first-​order reasons. Each of these objections, which will be developed more fully as we go, rests one way or another on the idea that the set of first-​order reasons bearing on an individual’s actions is both normatively and psychologically fundamental. It settles what a person should do, how a person may rationally deliberate, and, accordingly, how it is that people may rationally deliberate with each other. I cannot here enter into a full-​scale discussion of practical normativity or practical reasoning. What I  can do, however, is to expose the narrow-​mindedness involved in assuming that the set of first-​order reasons is the controlling idea in these domains, and to sketch an alternative basis for practical reasoning, including moral reasoning. A brief discussion of the metaphysical objection will set the stage, indicating the potential relevance of the idea of a final end as an alternative to that of a reason. We will not be in a position to set out an adequate understanding of the idea of a final end, however, until we grapple with the moral psychological objection. On the understanding that I will set out, final ends serve as a basis for capturing practical commitments in a nonalienating way that conduces to people working out, together, fuller understandings of the content of their commitments. Finally, we will see that this openness to a joint working out of the content and implications of the starting points allows greater scope for normative authority than does the starting point defined by the set of first-​order reasons.

8.1 The Appeal of the Set of First-​Order Reasons The objection to my view that I  am here labeling “metaphysical” rests on the assumption that the ultimate grounds for claims about what people ought to do are their reasons for action. For any binary choice, either the balance of reasons

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will tip to one side, or it will tip to the other, or there will be a tie.2 On this understanding of the bottom line, a tie looks like an alternative about which we should be indifferent, not an indeterminacy. Accordingly, the very metaphor of the balance of reasons seems to count against my claim that there can be any objective moral indeterminacy. We might not grasp the relevant reasons very well; but if we did, surely that would dictate where their balance lay. Since this protean idea of the balance of reasons is quite metaphorical, we need to consider a more definite and precise version of this kind of view in order to give proper shape to this objection. The version that I will consider holds, more specifically, that what grounds “ought” claims is where the balance of first-​order reasons lies. In other words, the grounds of what people ought to do are the first-​ order reasons not overridden in the context of action. (Our concern, of course, is with morality; but for present purposes, we can abstract from the specifically moral “ought.”) This view is a version of what has been called “the weighing conception” of reasons (Horty 2012, 2). According to this broad family of views, conflicting reasons compete with one another solely on the basis of strength. When several are arrayed on one side of a conflict, all that matters is their aggregate strength, which may or may not be additively determined.3 The stronger side is the one that prevails.4 The version of the weighing conception that I have chosen to focus on for the purposes of this discussion is taken from Joseph Raz’s early work (Raz 1990, chap. 1).5 His account is valuable in the present setting because of the sophisticated way that it finds a place for mandatory rules or norms and commitments, despite 2. For the sake of simplicity, I here abstract from the possibility of parity, defended by Chang (2002). 3. See the discussion in Horty (2012, 4) of Kurt Baier, Thomas Nagel, and Shelly Kagan as offering “generalized” versions of the weighing conception, on which strength need not aggregate additively. I am not here taking issue either with this more general view or with the “reasons first” view, which holds that other normative notions must be understood in terms of the idea of reasons, such as is defended by Schroeder (2018). 4. This is not to say that the relative strength of the reasons on either side are determinable independent of the determination of which side overrides which, as assumed by Benjamin Franklin’s notorious suggestion about toting up the pros and cons of a given choice by canceling out opposed pairs or combinations of equal weight and seeing what is left standing—​quoted and discussed both in Richardson (1994, 7–​9) and Horty (2012, 3). Joseph Raz at one point defined one reason as being stronger than another iff “all the reasons entailed by it override all the strictly conflicting reasons entailed by the other” (Raz 1990, 26). 5. I am using this relative early work by Raz (originally published in 1975) as a foil, putting to one side the more complex and, to my mind, more attractive view developed in Raz (1986), which emphasizes the importance of incommensurability among reasons and the resulting scope for individuals’ choices and commitments to make a difference regarding how they ought to act.

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ultimately tracing all reasons back to the balance of first-​order reasons. Roughly, Raz’s view is that people ought to act on their undefeated or nonoverridden reasons.6 The first-​order reasons compete with one another in a way that we can model as a contest of strength (Raz 1990, 75): Reasons have a dimension of strength. Some reasons are stronger or more weighty than others. In cases of conflict the stronger reason overrides the weaker. This feature of strong reasons is their defining characteristic. The strength of reasons with which we are concerned is their logical strength. It differs from their phenomenological strength as measured by the degree to which the thought of the reason preoccupies a person and dominates his consciousness. In addition to recognizing first-​order reasons, which favor actions  or disfavor them, however, Raz recognized higher-​order reasons, which bear on how or whether one ought to act on certain first-​order reasons. Most famously, he defended “exclusionary reasons.” These are reasons not to act on some range of the first-​order reasons applying to one’s alternative actions (Raz 1990, 35–​48, 182–​186). Generically, by Raz’s account, acting on exclusionary reasons is justified in cases where so doing will improve one’s chances of conforming with the balance of first-​order reasons—​where this conformity is not taken as implying that one does what one does because the balance of first-​order reasons supports doing it (Raz 1990, 178). What matters is this conformity with what the balance of reasons supports doing, not how it is achieved (182–​183). Although higher-​order reasons can compete with one another on the basis of strength, they win a contest with first-​order reasons by definition, as it were, and not on the basis of strength. They obtain their justification, as I have said, from their ability to help produce conformity to what the balance of first-​order reasons supports. Raz describes exclusionary reasons as arising in various ways, of which I will describe three. They might apply to someone whose capacities are temporarily impaired—​say because of having had a tough day at work. In those circumstances, one might do better to avoid dealing with a difficult decision rather than acting on the balance of applicable reasons as one blearily sees them. Another possibility, which we will explore further later in this chapter, is that exclusionary reasons arise from authoritative directives. These can help produce conformity with what the balance of first-​order reasons requires, Raz argues, by

6. Raz’s more nuanced view was that “ ‘ought’ statements . . . are logically equivalent to ‘there is a reason to A in C which is not defeated by other reasons in every case of C’ ” (1990, 213).

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addressing coordination problems, as well as in other ways. Finally, Raz also holds that justified norms and rules, such as the moral principle that one ought to keep one’s promises, generate exclusionary reasons. Moral principles, so understood, perhaps have a status parallel to the “secondary principles” recognized by John Stuart Mill (1988, 24: II.24) as reflecting the accrued wisdom of humankind as to what conduces to general happiness—​and so, according to him, also to actions that best conform with the balance of the first-​order reasons. Although this early Razian account of reasons for action thus includes a role for rules and principles, including moral principles, it generates a powerful objection to the account of moral indeterminacy that I have given.7 If moral principles ride on the first-​order reasons, and if the first-​order reasons compete solely on the basis of strength, why should it ever be indeterminate whether one principle overrides another? Strength would seem to be a unidimensional, scalar matter. If so, then it seems that either the reasons in favor of one resolution of a conflict outweigh those in favor of the contrary resolution, or else there is a tie; but in no case is there an indeterminacy. Although this objection to the possibility of fundamental moral indeterminacy is the one that I am addressing in this section, I pause to note that if it holds, it also suggests a corollary objection to my account of authority. This would arise from adding in Raz’s account of political and legal authority, his well-​known Service Conception, as set out in The Morality of Freedom (Raz 1986). In this view, authoritative directives can make a difference in what people ought to do only because, and only when, people will have a better chance of complying with what the set of first-​order reasons dictates if they follow the directives than if they act on their own unrestricted assessment of the actions that these reasons call for. Operating partly via exclusionary reasons, the authoritative directives, on Raz’s account, imply that those subject to them ought not to act on certain of their first-​order reasons. Readers enamored of the view that our first-​order reasons compete only on the basis of strength will tend to read this theory of authority as comporting with Raz’s earlier conception of reasons.8 They will thus see a set of first-​order reasons competing only on the basis of strength and a set of higher-​order reasons constraining when one may act on certain of those reasons. To such readers, it will look like the first-​order reasons dictate how people ought to behave. They will see the legal and political directives that make a difference in what reasons they ought to act on as conventional mechanisms that are merely helpful means

7. This sets aside my argument in §I.3 that morality may not speak to some issues at all. 8. Later, Raz (1986, chap. 13) championed the incommensurability of values.

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of bringing about the best possible outcomes. They will hold that the first-​order reasons suffice, in principle, to identify these best outcomes. Since, unlike the law, morality is supposed to deal with what, from an impartial perspective, ultimately ought to be done, the objection concludes that to play such a merely heuristic role is not to exercise moral authority. My response to the metaphysical objection, as well as to this corollary objection that invokes Raz’s service conception, is to question the Razian picture of reasons that they presuppose. What poses a threat to my account of moral indeterminacy is its suggestion that the first-​order reasons compete solely on the basis of strength, where this is understood unidimensionally as a matter of the more and the less. This suggestion is insufficiently motivated and unsupportable. As I noted in §I.3, the fact that sometimes one consideration overrides another does not imply that there is a unidimensional or commensurating basis for comparing competing considerations. It can accordingly turn out that, although two considerations significantly conflict, neither overrides the other (Raz 1986, 362; Sinnott-​Armstrong 1988). That is plausible both for conflicts between moral considerations that are radically different in kind, such as Agamemnon’s duty to protect his daughter and his supposed duty to lead his fleet onward from Aulis, and for conflicts involving symmetrical and opposed considerations involving distinct persons, such as a choice between whether a parent should betray one of her identical-​twin toddlers or the other. Given that it can happen that neither of two competing moral considerations overrides the other, it is tendentious and misleading to take “What overrides what?” as defining a notion of strength. The concept of strength implies (or at least strongly suggests) a unidimensional comparability that is not implied by the actual facts about which reasons override which. It might be thought that in cases in which neither competing reason overrides the other, the reasons must be equal in strength; however, in a case like Agamemnon’s, the qualitative distinctness of the reasons makes this claim implausible. In such cases, “[t]‌he suggestion that [the alternatives] are of exactly the same value cannot be entertained seriously” (Raz 1986, 332). In the toddler-​betrayal case, it is the uniqueness of the value of each individual child, “as a unique non-​replaceable being,” despite the qualitative similarities of the twins, that makes the claim implausible (Nussbaum 1990, 72). If basic reasons do not compete with one another solely on the basis of strength, then the metaphysical objection fails. But if what morally ought to be done is not ultimately grounded in a set of first-​order reasons that compete solely on the basis of strength, what is it grounded in? There are, of course, various possibilities. A nearby possibility is that it is grounded in the set of first-​order reasons, where these are seen as competing and aggregating in a way that is sensitive to more than one dimension of variation. Such a picture, which would allow a

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theorist such as Raz to say all (or almost all) of what he wants to say, could readily explain indeterminacies. The overall rankings that it supports can be expected to be incomplete. Another possibility would be to build on the moral psychology of ends, which we are about to examine, by looking at an objective counterpart of the attitudes involved. I will note that possibility once those attitudes have been explained; however, I turn to the moral psychology of ends, initially, in order to address the moral-​psychological objection.

8.2 The Moral-​Psychological Objection The moral-​ psychological objection also rests on the idea that competing considerations compete solely on the basis of strength; but whereas the objection that we have just been discussing treats this as a metaphysical claim about the nature of reasoning, we now turn to an objection, similar in spirit, that sees this unidimensionality as a deep feature of our moral psychology. Desires, say some—​ or preferences, others prefer to say—​compete with one another on the basis of strength. The objection, then, is that there will be no occasion, well supported by the nature of our deliberations, for individuals to respecify any of their aims or commitments when they contingently clash with one another. Instead, all they can or need do is to ascertain (or “weigh”) how strongly they desire or prefer each alternative, and to select the more strongly favored one. The suggestion is that this structure of practical reasoning holds not only for individuals’ prudential reasoning, but also—​duly modified by adopting the moral point of view—​for individuals’ moral reasoning. My response to this objection is simple in form. It is to counterpose against this model of weighing desires or preferences a model of end-​means deliberation, the need for which the former model seems (at least tacitly) to presuppose. End-​means reasoning is even more central to our moral psychology than is the weighing of competing desires or preferences. Furthermore, as I  shall suggest, neither desire-​nor preference-​based models well capture end-​means reasoning.9 The account of end-​means reasoning that I will sketch here generates no objection to my account of how people work out together the content of their duties and rights. Furthermore, it well supports my account by affording a compelling

9. Here, I follow Bratman (1987, 23, 35). Bratman defends his account of intentions as capturing end-​means reasoning in a way that, he claims, standard decision theory cannot. As I indicated in n.1, however, Bratman concedes, at least for the sake of argument, that the basic reasons are belief-​desire reasons, as standardly conceived. Since I mean not to concede this point, I will circle back to the metaphysical objection later in this section.

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interpretation of the idea of a person’s practical commitments—​one that well explains how people can work out together the content of their commitments. In order to develop this account of end-​means reasoning, the first thing we need to do is to rescue the idea of an end, and thus our understanding of end-​means reasoning, from some of its supposed friends, those neo-​Humean philosophers and decision theorists who seem to recast end-​means reasoning in terms of the rational maximization of preference or desire satisfaction. Undertaking this rescue is important for its own sake, but also for the sake of giving an adequate account of the idea of a commitment. In here addressing the moral-​psychology objection, I will be focusing on the psychology of our deliberations, taking it that end-​means reasoning is obviously central thereto. In addition to working from within the set of moral judgments that we accept upon reflection, we ought to attend to the ways in which, when approaching moral issues, we reflectively find it appropriate to deliberate (Richardson 1995). Some might wish moral psychology to probe more deeply into the mental states that underlie our deliberations. An Aristotelian moral psychology can provide a deeper psychological underpinning for the account of final ends that I will give here (Richardson 1992b, 2004a, 2004b). It is uncontroversial that, as Dewey puts it (1939, 34), we deliberate with an end in view. In doing so, we seek to settle upon means to this end. It is now well recognized that these means can include constitutive means as well as causal ones. Starting with the end in view of eating out this evening, we can both specify the end (eating out at a Lebanese restaurant) and choose some steps to take toward achieving it (booking a table at a Lebanese restaurant). As Aristotle put it, “[W]‌e deliberate not about the ends but about what contributes to ends” (1984, 1756: N.E. 1112b11–​12).10 Rendering determinate our own ends is crucial to the rational filling in of our plans, as when someone starts from the aim of having a career in medicine and then settles, upon further deliberation, on seeking a career as an infectious-​ disease specialist (see Bratman 1987, 48). As I will explain later in this chapter, this kind of deliberate specifying of “what contributes to” one’s ends can have the effect of elevating, within an agent’s set of commitments, what had been a mere means to being a final end, sought for its own sake.11 But the deliberation that has this kind of effect also starts from an agent’s ends.

10. The broad reading of this line reflected in this translation was persuasively defended by Wiggins (1980). 11. I argue this point in Richardson (1994, §13). I will not be able to explain the main move of that section until I have unpacked the Aristotelian conception of an end in §8.3.

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This is to say that end-​means reasoning is a richer and more complex affair than most neo-​Humeans imagine. But to say this is to understate the case against their view. In their push to provide systematic accounts of practical reasoning, neo-​Humean desire-​satisfaction theorists, and especially those rational-​choice theorists who have moved from a psychological to an axiomatic account of rational agents, have lost touch with end-​means reasoning altogether.12 I want to be clear here. In saying this, I by no means imply that they exclude the possibility of end-​means reasoning.13 On the contrary, they presume that end-​means reasoning takes place as a prelude to the kind of reasoning they describe. Although they thus depend on end-​means reasoning occurring, however, they offer no account of it. They leave it offstage, in the shadows of the wings, unexplained. Continuing to clarify, I concede that the maximization of either desire satisfaction or preference satisfaction imposes some holistic constraints on the set of desires or preferences in question (Wallace 2009). These have to do with supposing that certain sorts of conflicts among one’s desires or preferences have been worked out. In these systematic theories, maximization of overall desire satisfaction, somehow indexed, replaces the satisfaction of this or that desire, while in the case of axiomatic preference theory, the axioms impose a requirement that the preferences generate a consistent ordering of alternatives. We know from our daily lives, of course, that the categories of “end” and “means” play very important roles in how we work towards consistent preference rankings and coherent systems of desire. In the desire-​and preference-​satisfaction theories that generate the moral psychological objection we are considering, however, these categories are relegated to the roles of Rosencrantz and Guildenstern in Hamlet: they barely appear and hardly speak. While many desire-​satisfaction and preference-​based theorists of rationality simply add, as an aside, that some other kind of thinking is required in order to achieve the kind of consistency they presuppose, some theorists build this presupposition into the definition of the concept around which their theory of rational deliberation revolves. For instance, they may distinguish between instrumental and “intrinsic” desires or preferences and build their theory around the latter. An “intrinsic” desire or preference, in this context, is supposed to be or reflect an end and is typically glossed as arising when an individual desires or prefers something

12.  Humean desire-​based views of practical reason are now well represented by Schroeder (1997). For a powerful development of preference-​based rational choice theory, see Jeffrey (1983). The axiomatic theory of rationality was given classic shape by Von Neumann and Morgenstern (1953). I here restate and extend points made in Richardson (1994, §15). 13. I am grateful to Michael Smith for having pressed me to clarify this point.

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“for its own sake.”14 (Typically, these philosophers leave this latter, traditional expression unexplained; I will offer an analysis of it later in this discussion.) An example of such a theory is von Wright’s (1963) theory of “the logic of preference.” Simply to suppose that we can start with intrinsic preferences or desires, however, ignores how much work continually goes into learning and revising, tacitly or explicitly, what one desires or prefers for its own sake. It is also to ignore the complication that many things that we desire or prefer for their own sake, we also desire or prefer for the sake of something else. To take Arpaly and Schroeder’s example (2014, 7): a sports fan may desire that her team wins both for its own sake (being a true fan) and for the sake of avoiding the deep disappointment that she would feel if they lose. As I will shortly show, a proper understanding of this complication can open up powerful possibilities for practical reasoning. Still, let us suppose that we are talking about an individual whose intrinsic desires or preferences are sufficiently consistent and complete to support a unidimensional modeling—​in terms, for example, of a utility function. Whether this orderliness has come about via hard learning, careful deliberation, or good genetic luck does not matter. Can we not then say that the account of deliberation so modeled will capture this person’s end-​means reasoning? No. The reason why we cannot say this is that the index on the basis of which the person may be described as rationally maximizing—​utility or some other—​is not aptly characterized as an constituting or expressing an end. Rather, it is a highly complex function of the contingent psychological and contextual ways in which the person’s many distinct ends (or intrinsic desires or preferences) happen to interact in the immediate and the broader context. Maximization of the index is not something at which the person aims for its own sake (Rawls 1999b, 283). The moral-​psychological objection fails, then, because it is predicated on an incomplete moral psychology. In keeping the categories of end and means offstage, the moral psychology that the objection relies upon tacitly depends upon a whole other kind of practical thinking and skill, which it leaves out. In order to characterize this mode of thinking positively and to bolster my claim that any moral psychology that rests solely on the idea of maximizing desire satisfaction is woefully incomplete, I will devote the following three sections to developing an alternative, which takes the idea of end-​means reasoning seriously, makes room for serious practical commitments, and yet explains how people can reasonably work out with each other conflicts between their commitments.

14.  This terminology seems to elide what Korsgaard (1983) argued to be two different distinctions. I believe, though, that such theorists simply mean to be restricting themselves to what is desired for its own sake. See, e.g., Brandt (1979). Accordingly, I have put “intrinsic” in scare quotes.

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8.3 Reasoning in Terms of Ends Since the categories of end and means are so central to how we actually deliberate, and since they are invoked by thoughtful versions of desire-​and preference-​based views, we would do well to develop a moral psychology that brings them back on stage. At the very least, we should not rely on a moral psychology that centers on “intrinsic desires” or “intrinsic preferences,” defines those ideas in terms of what is desired for its own sake, and then fails to tell us what it means to desire something for its own sake. Various accounts of this last idea might be given. I will now lay out and defend an Aristotelian account of this idea which, in his terminology, is the idea of seeking something as a final end. Our ordinary deliberations seem to show that our moral psychology depends on this idea and our understandings of practical rationality seem to have a hard time doing without it. If the Aristotelian account of this idea is on the right track, then we can go beyond showing that the views on which the moral-​psychology objection rests are incomplete, progressing to characterizing an attractive understanding of moral psychology that supports the kinds of deliberation highlighted by this book’s account of moral innovation. As Aristotle describes it, choice results from deliberation, which always starts from some end. Choice takes the following form: “to do [action] A for the sake of [end] E” (Broadie 1991, 226). Restating Aristotle’s view, Christine Korsgaard (2008, 148)  writes that “[d]‌eliberation,  .  .  .  if it is to issue in an action that is chosen, is not merely about how to achieve a certain end, but about what, in the circumstances, is worth seeking for the sake of what.” To understand the idea of an end, we need to understand this “for the sake of ” relation, which lies at the heart of choice. Thanks no doubt in no small part to the pervasive influence of Aristotle on Western thought, the idea of pursuing one thing for the sake of another feels totally familiar; yet we have lost our grip on its full meaning. We need to recover a clear understanding of this relation in order to understand the idea of an end as something distinct from a valued option. The notion of an end that matters, here, is what Aristotle called a “final end”:  something aimed at for its own sake (N.E. 1097a26–​28).15 Since what 15. “Aiming,” here, should not be taken to imply “setting out to promote.” J. David Velleman has aptly criticized me for having seemed to imply, in an earlier work, that ends always name goals or achievements that are to be achieved and that are distinct from the actions done for the sake of those ends (Velleman 1999, 355). Interpreting me in this way, he objected that we often aptly say that one does things “for the sake of [one’s] dear departed mother” or “for old time’s sake.” When offering paraphrases of these that inserted appropriate verb forms, he stuck with paraphrases comporting with the supposed implication that the end for the sake of which one acts is a state of affairs to be produced or secured by one’s action, such as “fulfill[ment of one’s] late mother’s wishes” or “reviv[al of one’s] memory of old times.” Since, however, I have

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Aristotle characterized as a nonfinal end is just what we call an intended means, I will, going forward, abbreviate by calling final ends “ends.” It is clear enough what an end is not. An agent sees an end as valuable, but as “not simply conducive to or necessary for something else that is of value” (Rabinowicz and Rǿnnow-​ Rasmussen 2000, 48). To say only this, however, is to undercharacterize ends. As is familiar both from Aristotle and from everyday deliberations, we sometimes think of ends as chained via the “for the sake of ” relation. This possibility is suggested by Arpaly and Schroeder’s sports fan example, which illustrates that one can value something both for its own sake and for the sake of something else. The chaining that I have in mind simply reiterates this possibility. Consider, for example, a young woman who desires to spend a semester in Accra as a way of deepening her understanding of the difficulties of urban renewal in a Ghanaian slum such as Old Fadama.16 It is plausible that she may seek such understanding for its own sake, as an end. Compatibly with this, however, she may seek such an understanding also for the sake of furthering her planned career in development aid. If so, we already have a three-​tiered hierarchy, starting with a mere means (going to Accra) and proceeding to two levels of ends. This thought is quite familiar and quite congenial to common sense, tricked out in Aristotle’s jargon though it is. So far, all we know about the hierarchy is captured by saying that she values (1) going to Accra for the sake of (2) understanding specific kinds of urban-​renewal challenges, and values (2) both for its own sake and for the sake of (3) pursuing a career in development aid (which is presumably something else she values at least in part for its own sake). Worthy of particular note is that it is common, in a chain such as this, for one end to be ordered as “more final” than another. One final end, B, is subjectively more final than another final end, A, just in case A is sought for the sake of B, but not vice versa.17 We may call the partial ordering that results from these relations an agent’s “ordering of finality.” Before offering an analysis that explains always approached these matters from an Aristotelian viewpoint, with its strong emphasis on activities that are valuable for their own sake, I should not have written in a way that implied this limitation. Equally welcome, from my point of view, would be paraphrases that described one as acting “for the sake of honoring one’s departed mother,” or even “for the sake of respecting this person as a rational being.” What is essential is the link between an end and an action or activity. Aptly, Rabinowicz and Rǿnnow-​Rasmussen (2000, 47n.) asks, “are we really prepared to say that the person for whom we act is the end of our action?” The action or activity involved could be a case of causally promoting an achievement, constituting an achievement, or expressing an attitude. 16. This example is inspired by the work of Jessica Kritz and her team in Old Fadama. That said, I should emphasize that all the deliberative stances and moves that I describe in the text are hypothetical examples. 17. This idea of the “more final” (teleioteron) is Aristotle’s: Nicomachean Ethics, 1097a30.

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this possible antisymmetry of pursuit, let me of an example: Suppose that I love fancy laptops.18 There are certain things I would do even if the only result of value were that I obtained a fancy laptop. Further, I will regulate my pursuit of fancy laptops by reference to the fanciness of laptops. Thus, I value fancy laptops for their own sake. Still, I may recognize that for the most part, the fancy laptop serves as a means to working efficiently while I am traveling. Even though I do value fancy laptops for their own sake, I would not see it as appropriate to choose my work—​say, which research projects to embark on—​simply in order to give myself an excuse to get a really fancy laptop. Hence, though I value both fancy laptops and doing good work for their own sakes, and thus have both as ends, these ends are hierarchically related on the basis of these sorts of views about what appropriately regulates the pursuit of what. More generally, what gives rise to such a hierarchy are the agent’s views about what is not an appropriate basis for regulating what. This distinction as to what appropriately regulates what will disappear if we confine ourselves to choices as between fully defined and fully distinguished options.19 Obviously enough, if we imagine two alternative research projects that are equally attractive intellectually, it will make sense, given my love for fancy laptops, to let their computing requirements (or equipment budgets) break the tie. As Michael Bratman’s planning theory of intention well brought to the fore, however, our plans of action unfold bit by bit over time, leading us to consider selected subsets of the possible examples in a path-​dependent way. Instead of considering fully defined and distinguished options, we commonly start with a general plan and leave our “sub-​plans” to be filled out later (Bratman 1987, 29). If I have decided or chosen to repaint my house for the sake of putting it on the market, for example, then this means, in part, that I will tend to assemble color options with an eye to what will enhance the house’s marketability. If my aim in repainting the house is simply to make it more beautiful in my own eyes, I  will gather a different set of color options. It is beyond anyone’s deliberative capacities to consider all the possible color options. The ordering of ends as being more or less final is very different from a ranking of options, and serves to help us cope with the otherwise unmanageable multiplicity of the options that we generally have by giving us a reasonable basis for focusing on just a few of them at a time—​or for grouping them into rough categories. What the possibility of such an ordering of ends shows is that in explicating the idea of an end, two importantly distinct features need attention. One is the

18. This is an updating of an example in Richardson (1994, 55–​56). 19. I am grateful to Thomas D. (“Tom”) Campbell for discussion of this point.

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positive feature that makes something a candidate for being pursued for its own sake. The other is a regulatory or specificatory feature that sometimes can—​and often does—​provide such chains with their hierarchical or antisymmetrical nature. To explicate these features, it is easiest to work with the more general case, in which A  is done or pursued for the sake of B, which is not a mere means, applying the lessons only later to the more specific case, in which we let A equal B—​an identification that will explicate the idea of a final end, sought for its own sake.20 We will work up to the latter. Let’s begin by recovering the simple idea that one thing is sought for the sake of another. It can be set out as follows: One pursues A for the sake of B just in case: (1) one would pursue A, even setting aside all that were thereby to be gained except B; (2) one judges, implicitly or explicitly, that it is appropriate to regulate how one develops and selects one’s plans to pursue A by reference to B;21 and (3) one believes that pursuing A is a way of pursuing B. The first of these clauses captures the positive idea that the agent takes it that it is worth undertaking some trouble for B’s sake (namely, an action such as A). The second is the regulative condition that captures the possible antisymmetry of pursuit. The third states that A’ing is taken to be a causal or constituent means to B’ing. We can now generate an analysis of the idea of a final end by taking this account of what it is to pursue A for the sake of B and applying it to the case in which we let B equal A. Thus, a given pursuit A is a final end for an individual just in case the following three conditions are met: First, the individual would pursue A even if she believed that nothing else of value would thereby be realized; second, it must be the case that she will tend to regulate the precise way that she pursues or undertakes A by reference to A itself; and, finally, she must be sane enough to believe that pursuing A’ing is a way of pursuing A’ing.

20. For the possibility of setting A equal to B to make sense, we must interpret ends as a species of doings, expressible either in terms of gerunds or in terms of infinitives. I am grateful to Alex Guerrero for raising this issue. 21. Compared to my initial presentation of this kind of analysis (Richardson 1994, §7), the clauses in the text are more focused on how the agent will or would proceed, and his or her conception of the good, as partially reflected or constituted by these tendencies, is placed further in the background. I am grateful to Erin Kelly for comments on these issues.

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So, for instance, look again at the case of the young woman wanting to go to Accra for a semester to deepen her understanding of urban-​renewal challenges there. If, as we were assuming, obtaining this understanding is a final end for her, this implies that she would pursue the trip to Africa even if that is all she expected to get out of it. Further, even though she does see this understanding as contributing to her career in development aid, which is for her a more final end, she will take it that the importance of understanding the urban-​renewal challenges there, considered by themselves, impose important constraints on what she does in Accra—​constraints that are presumably not directly derivable from furthering her career goals. In addition, considerations about what it means (properly) to understand these urban-​renewal challenges will further guide her practical planning. This kind of structuring of practical thinking in terms of what is sought for the sake of what, accordingly, allows for distinctive ways of restructuring one’s aims. Three important kinds of moves can be illustrated by reference to this same example. It is easy to imagine practical issues arising for this young woman that would press her to reflect on why she is pursuing a career in development aid. Is she doing so simply in order to find a useful outlet for her distinctive talents, or to make a difference to the lives of people living in slums like Old Fadama? Or, if both, how are these two ordered? Thinking along these lines may lead her newly to articulate and to settle on a description of an additional, superordinate end, one higher in the ordering of finality than any she had hitherto articulated. Second, she might decide that elements of her career plan that had figured simply as means to her overall goals, such as spending time interacting one-​on-​ one with the people of Old Fadama, is no longer something that she finds appropriate to view as a mere means, regulated only by other ends, but is now something that she cares about for its own sake and views as, to some extent, appropriately regulating some of her choices. In other words, she can elevate something that she had considered a mere means to a final end.22 Third, she might be led to reconsider which of a pair of final ends is sought for the sake of which, reversing their order of finality. She might, for instance, decide that she had been too careerist in her orientation, and that she should pursue a career in development aid for the sake of better understanding the plight of people in Old Fadama, rather than the other way around. None of these deliberative moves reduces simply to a reranking of alternatives. The reason for this is that they shape the overall process of one’s planning going 22.  On learning about what one cares about for its own sake, see Millgram (1997). On elevating a mere means to being a final end on the basis of reconsideration of what appropriately regulates what, see Richardson (1994, 84–​85).

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forward—​a process that affects which alternatives will become salient and relevant. A moral psychology built on this Aristotelian conception of final ends is quite distinct from one centering on the competition of desires solely on the basis of strength or from one modeled solely in terms of preferences. I have reconstructed the Aristotelian account of desire that supports it (see Richardson 1992b). In order to bring this Aristotelian moral psychology to bear in responding to the moral-​psychological objection, it will be helpful to explain how this understanding of final ends gives a compelling interpretation of the idea of a practical commitment. An initial step in that direction will be to examine how this Aristotelian account of ends can support the attractive characterization of expressive norms put forward by Elizabeth Anderson and Richard Pildes. “Expressive norms,” they write, “regulate actions by regulating the acceptable justifications for doing them” (2000, 1511). Accordingly, they suggest, “the basic form of an expressive norm” is the following (1512): Take (or do not take) goal G as a reason for doing action A. For instance, parents should “take their children’s needs as reasons for taking care of them,” and one should not take “the goal of avoiding unpleasantness as a justification for avoiding visiting one’s mother in the hospital” (Anderson and Pildes 2000, 1510–​1511). Plainly enough, regulating the acceptable justifications for possible actions is one way to fulfill the regulatory condition built into the idea of seeking one thing for the sake of another, and hence also into the idea of a final end. To insist that children’s needs are reasons to take care of them is to insist that satisfying their needs is important for its own sake, and hence is a sufficient basis for regulating a range of choices. To reject the suggestion that avoiding unpleasantness—​worth avoiding though it is—​is an adequate justification for avoiding a visit to one’s hospitalized mother is to refuse to accept that attending to one’s mother is to be sought for the sake of avoiding unpleasantness. Arguably, in fact, seeking to avoid unpleasantness is, objectively, generally not an adequate justification for not visiting one’s mother in the hospital. Although a basis in what an individual pursues under what conditions and judges appropriate to regulate what may be fine as elements in an account of our moral psychology, this is too idiosyncratic a basis to undergird legal or moral norms. On that account, it is important to note that it is easy enough to state an objective counterpart of the account given here of what it means for an individual to pursue A for the sake of B. Such an objective account will refer to what would be worth pursuing under certain conditions, what would in fact be appropriate to regulate on the basis of what, and what in fact is a way of doing what. To look back for a moment to the metaphysical objection, then, one alternative to morality

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being ultimately grounded in a set of first-​order reasons that compete solely on the basis of strength is that it is grounded instead in what is worth seeking for the sake of what. Returning to the subjective understanding of what it is for someone to pursue something for the sake of something else, and so to the moral-​psychological objection, it seems clear that ends, understood in this Aristotelian way, have something to do with a person’s commitments. To fail to take one’s children’s needs as a reason to take care of them is to fail to be committed to caring for one’s children. To refuse to let unpleasantness get in the way of visiting one’s mother in the hospital is part of what it is to be committed to loving or caring for one’s mother. The Aristotelian psychology of ends, I have argued elsewhere, better supports the idea of a commitment than do preference-​or desire-​based psychologies (Richardson 2012a). Here, I will content myself with offering a few considerations designed to convince you that this Aristotelian moral psychology satisfactorily captures the idea of commitments, before coming to the core of my constructive response to the moral-​psychology objection, which concerns how people can work out together the content of their commitments.

8.4 The Role of Commitments People come by their commitments in a variety of ways. Some arise from explicit commissive acts, such as promising or vowing.23 Yet this is not necessary, as Bernard Mayo (1955, 343)  pointed out:  “[O]‌ne can also be committed to something by way of finding oneself committed to it as a result of something other than a deliberate and explicit act of commitment[,]  .  .  .  as we recognize when we say things like . . . ‘I realize now that I’ve been committed to that all along.’ ” Relatedly, while explicit commissive acts serve in part to license people (including, in cases such as vows, the agent herself ) to form expectations about the agent’s future action (342–​343), commitments with which we simply find ourselves do not necessarily serve this function. Acting on one’s commitments seems qualitatively distinct from acting on one’s strongest desires or acting in a way that simply expresses one’s preferences. To ask what is involved in acting on a commitment is, to borrow Daniel Dennett’s pun, to open the “can of Worms” (1984, 144). “Here I stand; I cannot do otherwise,” Martin Luther reportedly declared at the Diet of Worms in 1521, refusing to recant his alleged heresies—​an emblematic expression of action on commitment.

23.  For a fascinating and relevant discussion of the range of possible commissive acts, see Brewer (2003).

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Whether he actually said this or not, this statement surely captures something correct about his commitment to his views. But what is this “cannot”? It is not mere cant. My suggestion is that the regulative condition of the Aristotelian psychology of ends can capture it. The pursuit condition is a version of the standard pro-​attitude account of agents understood as pursuing what they value, but the regulatory condition is in part negative. It is sensitive both to what the agent does take appropriately to regulate what, and to what the agent takes to be an inappropriate basis for regulating what. In this way, it builds in a moral-​psychological basis for understanding what the agent will not do. Modeling commitments in terms of ends—​or rather, in terms of what is sought for the sake of what—​helps explain why the practical stances in which commitments consist cannot be well captured in terms of trade-​offs.24 Luther’s stance was a principled one, but not all practical commitments involve principles. One’s commitment to caring for one’s ailing mother, or to keeping one’s children safe, are likely not to be based on, or expressive of, principles; yet they will nonetheless have some implications about what one “cannot” do. The Aristotelian account of the psychology of ends is thus well positioned to account for commitments of these different sorts.25

8.5 Compromise: Working Things Out Together The core of the moral-​psychological objection to this book’s account of how new moral norms can be generated can be boiled down to the following two claims:  First, when individuals confront difficult moral decisions, their practical psychology is such that all that they are able to do is to reweight the values they care about; and, second, reweighting values does not generate anything that has the shape of a norm or principle, moral or otherwise. While it would have been possible to contest only the second of these claims—​perhaps by conceding that moral norms are merely rules of thumb that conduce to impartial value 24. This is not to deny that the choices of an agent rationally pursuing her ends could not be captured by a utility function or an attributed set of dyadic desires if the interpreter were free to build that function, or the set of attributed desires, from scratch, with unlimited flexibility. In the text, I am talking about limits that apply to working from within an agent’s own practical self-​understanding. On this point, see generally Anderson (1993). 25. In relation to the constructive ethical pragmatism (CEP) set out in c­ hapter 1, it is worth noting that while it would be natural to take the way an individual’s ends are connected and ordered by the “for the sake of ” relation as comprising that individual’s conception of the good, the fact that ends, in the Aristotelian analysis, can capture principled commitments would also license taking this structure to be, or to include, the individual’s conception of the right. Thus, in line with what CEP recommends (see §1.1), this moral psychology supports some softening of the divide between the good and the right.

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maximization—​I have put forward a brief account of our moral psychology that counters the first, prior claim. This alternative account describes an intuitively familiar process of deliberation—​one that is positioned to capture, as the accounts of deliberation on which the objection relies are not, the central importance in our practical thinking of end-​means reasoning. So far, however, my account has focused on the deliberations of a single individual. To complete my rebuttal of the objector’s second claim, I need to explain how the moral psychology that I have sketched supports a process wherein two or more individuals work out together what to do in a potentially principled way. This final step of my response thus takes us to the idea of compromise. I will be arguing that the moral psychology that I have put forward helps us see how compromise can be principled. Here, it will be helpful to keep in mind two features of this alternative moral psychology that I have already mentioned. First, it emphasizes the gradually unfolding planning phases of deliberation rather than zeroing in, as applied decision theory tends to do, on the decision to be made at a given point in time, when the options can be exhaustively listed, the branching possibilities of their consequences laid out, and their expected payoffs calculated.26 Second, it stresses that, when we deliberate, we individuate the options bit by bit, as needed, in deciding how we will pursue our ends. For instance, one is unlikely to spend much time thinking about whether one would prefer to be an internist, a radiologist, or an infectious disease specialist until one has at least provisionally decided to become a doctor. The moral psychology of ends helps structure this unfolding planning process. The way that this kind of deliberation unfolds facilitates give and take between two or more people seeking to do something together. As we have seen, these broadly distinctive features of this account of our moral psychology enables it to describe various ways of altering one’s view in ways that do not reduce simply to reorderings of alternatives. These include adding a superordinate end, elevating a mere means to an end, and reversing the ordering of finality of two final ends. Each of these kinds of deliberative move can be helpful to two or more individuals seeking to work out together what they ought to do. What needs to be shown is that two or more individuals can come to reasonable compromises about what they ought to do that result in settling on a

26.  By “applied decision theory,” I  mean views such as those set out in textbooks such as Raiffa (1970). Of course, sophisticated decision theorists have had interesting things to say about how choices may unfold over time, and in doing so, some have resurrected the idea of commitment—​see, e.g., McClennen (1990, 160).

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newly characterized joint commitment that takes the shape of a general principle or norm. To be sure, some cases of compromise are well captured by the idea of reweighting values. Consider, for example, a case that David Luban has used to describe “the paradox of compromise,” the idea that “compromise is partial abandonment of the principle, [while] refusal to compromise one’s principles means in practice abandoning entirely the hope of seeing them realized” (Luban 1985, 414–​415). The case is a simple “logrolling” one, albeit about quite a general issue (415): Suppose half the people in a nation believe—​with arguments—​“ To each according to his need,” while the other half believe “To each according to his work.” (The latter too have arguments.) Each finds the other’s principle unacceptable; eventually they compromise on “To each according to his work, unless his work does not suffice to meet his most basic needs: then we keep him afloat with transfer payments.” Although this resolution has the general form of a principle, it is hypothetically not found acceptable as such by either party. Rather, the picture is that each party simply accepts this package as representing the best it can practically do, in the circumstances. Each thus has (at least apparently) decided that, in light of the weights they place on realizing their principle in its pure form, realizing it not at all, and realizing it with some serious qualification or limitation, this is the best that they can do. Neither side has accepted the other’s principle in any form, and so each is simply forced by the balance of power to choke down the resulting compromise (Luban 416).27 The Aristotelian psychology of final ends suggests that this is not the only way such a compromise can come about, and that, in fact, such a compromise can avoid this purported “paradox of compromise.” As I have argued, this moral psychology provides a good way of accounting for practical commitment. I have also argued that it supports various ways in which individuals can rethink their practical commitments: by respecifying their final ends, reordering which are sought for the sake of which, and by elevating mere means to being final ends. There is no great obstacle  to overcome for groups of people to undertake such alterations of their practical commitments. Like those engaged in logrolling compromises, they must be engaged in some joint activity: that is a presupposition 27. Alternatively, one might simply reject any role for such specific, action-​g uiding principles and see such cases as being ones in which, say, the utilitarian principle needs to come in as the weight-​setting umpire (Mill 1988, V:30, 56–​57).

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of a bargaining problem. Beyond that, they presumably need to be minimally well disposed to one another. They need to be willing to consider modifications to their practical commitments that they would not have considered but for their concern or respect for the other party, or for the joint entity or enterprise in which they are both engaged.28 Luban has chosen a venerable old dispute about distributive justice to illustrate the supposed paradox of compromise. Ignoring its apparent objective irresolvability, we can use it to illustrate how it might turn out that two initially opposed parties could find the resulting compromise acceptable, and hence end up being practically committed to it, for its own sake. Suppose that things unfold as follows: Those that start with “To each according to his need” consider meeting people’s needs to be valuable for its own sake and see working simply as a means for meeting needs. Those who start with “To each according to his work” are committed for its own sake to seeing to it that people get what their work entitles them to, and view meeting people’s needs as valuable simply as a means of enabling the system of employment to continue. Suppose, further, that those in the first group will persist in valuing work for the sake of meeting needs, and that the second group will persist in valuing meeting needs for the sake of work. Even so, they can come together, in principle, to accept the proposed compromise—​“ To each according to his work, unless his work does not suffice to meet his most basic needs: then we keep him afloat with transfer payments”—​as an implication of their revised principled commitment. Having sufficient concern and respect for the partisans of entitled reward to listen to them, the partisans of meeting needs decide that there is a point there: work should be fairly organized in order to reward people on the basis of the quality of their work. Work that is organized in a fair way, they decide, is not a mere means, but is worth having for its own sake. They will not, however, give way on the importance of meeting basic needs. Attending to this intransigence, and having sufficient respect for the partisans of need to suppose them reasonable, the partisans of entitled reward decide, we may suppose, that meeting needs is not merely a means of keeping the employment system going, as they had thought. That would support only an effort at meeting the workers’ needs for the most part. Instead, they become convinced

28. In Richardson (2002, 146), I used such a formula in purporting to define “compromise.” That was to define it too broadly, for some such modifications in one’s commitments could be purely benevolent, and hence would not fit within the frame of a bargaining problem, which I think is also presupposed by the idea of compromise. Here, I offer this formula simply as a precondition for deep or principled compromise.

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that securing each worker’s basic needs is a prerequisite to a fair competition for differential compensation to proceed, and hence to be valued for its own sake.29 Since, as we have supposed, the partisans of meeting basic needs have come to accept having a fair system of work as valuable for its own sake, they can accept a principle that starts, “To each according to his work,” so long as it is conditioned by basic needs being met. Since, as we have also supposed, the partisans of entitled reward have come to accept that a guarantee of meeting the basic needs of each is valuable for its own sake, they can accept a principle that contains this condition. Their views differ about whether fairly organized work is to be sought for the sake of meeting the basic needs of each, or vice versa; and that difference will continue to generate differences between these parties in future policy discussions; but this compromise principle they can wholeheartedly accept. They can accept each of its components involving work and basic needs, as well as the package that combines them. They have not abandoned their principles, though they have qualified them. The Aristotelian moral psychology set out in this section thus provides an adequate basis for explaining how two or more people can work out, together, newly revised moral principles. They can do this even if—​unlike our trans-​Alpine pair, Alduin and Schalduin, encountered in §4.2—​they start with diverging commitments. This moral psychology provides a basis for capturing commitments and for explaining how individuals sometimes revise commitments. A modicum of mutual concern or respect can enable pairs of people, or even larger groups, to undertake such revisions together.

8.6 Reasons and Reasoning The answers that I  have given in this chapter to the metaphysical and moral-​ psychological objections to my account of moral authority are mutually reinforcing. Against my response to the metaphysical objection, which invoked the common incommensurability of competing practical considerations, it may be objected that in difficult cases, we have no choice but to fall back on making trade-​offs by working out which set of reasons outbalances which. The end-​based moral psychology developed in the second half of the chapter, however, not only 29. This way of resolving the contest between desert and need is Rawlsian: see Rawls (1999b, §48). His argument that claims of entitlement flowing from one’s employment need to be conditioned on the overall fairness of the basic structure of society have hardly met with universal agreement. Even so, these arguments help fill out the kind of thought process that I briefly describe in this text. Someone who started as a simple defender of “To each according to his work” might become persuaded that it is important for the system of competitive reward to work within a fair set of rules.

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indicates that we do have a choice, but also suggests that we often proceed in another way. Against this suggestion, it might be objected that this end-​based moral psychology is an antiquated and merely folk-​psychological approach that has lost touch with what ultimately matters morally. This objection can be quieted by leaning on the response to the metaphysical objection, which points out that what ultimately matters, morally, is less tractable and orderly than the weighing conception of reasons presupposes it to be. Here, it is important to restate that it is not the fundamentality of reasons, as such, that this chapter questions, but only the weighing conception of reasons—​ as well as the moral psychology that it suggests. In the view that I have defended, there is nothing to stop a reasons-​firster from trying to reconstruct how all the normative claims I have made can be conceptually reconstructed as facts about moral reasons. A reasons-​firster holds that “all other normative properties and relations are determined by the balance of reasons” (Schroeder 2018, init.). For this reconstruction to be possible, it would have to be the case that some of the reasons invoked are higher-​order ones pertaining to how the moral community has exercised its authority. Whether such a reconstruction can go through or not, I leave to the reasons-​firsters to work out. For my part, in any case, I neither affirm nor deny the reasons-​first position. I am more confident that a moral realist could endorse my account without difficulty. The next chapter will take up that issue.

9

NONETERNAL MORAL PRINCIPLES

At the outset of this book, I mentioned that my account of how the moral community can introduce new moral norms need not conflict with a rationalist moral realism holding that all moral truths trace back to eternally true principles. And it will not, so long as this rationalist realism allows that the eternal principles include second-​order ones that authorize the moral community to establish new moral norms. This simple point will not satisfy all those who are drawn toward a rationalist realism, however. In this chapter, I will fend off ways of reviving objections from that that quarter that arise, not from rationalist realism as such, but from combining it with certain restrictive assumptions about the justification or explanation of moral norms.1 Looking first at the position of Ralph Cudworth, a seventeenth-​ century Cambridge neo-​Platonist, which has been helpfully analyzed by Mark Schroeder, we’ll consider his insistence that the defining or essential properties of actions settle whether they are morally required, forbidden, or indifferent. This insistence, I will argue, begs the question against the kind of view I am defending. We will then turn to G. A. Cohen’s argument that all moral principles—​or all moral principles truly worthy of the name—​are “fact-​insensitive,” and so, assuming cognitivism, are a priori or timelessly true (2008, chap.  6). At the outset of this book, I assumed that some moral principles have this status. However, Cohen argues that all ultimate moral principles do. This in itself may seem to threaten my claim that new moral principles can be introduced. I will argue that this appearance is misleading; but when this position is combined with Cohen’s argument for it, which works on the basis of certain assumptions about the nature of moral justification and disparages all moral principles that are not “ultimate,” a challenge for my view does arise.

1. I am grateful to Mark C. Murphy and Michael Smith for helping me understand this possibility.

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Cohen’s argument suggests that any moral norms that are contingently introduced will, in effect, be mere window dressing. Here, I  will consider two sufficient answers to this challenge. The first, put forward by Thomas Pogge, replies that the argument groundlessly assumes a narrow interpretation of fact-​ sensitivity. The second answer to Cohen’s challenge, a counterexample put forward informally by Sarah Moss, questions his suggestion that the kind of justification or grounding that he considers is necessarily asymmetrical. I will bolster Moss’s counterexample by drawing on the account of moral psychology set out in the last chapter. This second answer further undercuts Cohen’s disparagement of norms that are not ultimate by showing that there need not be any that are ultimate.

9.1 Cudworth’s Essentialist Argument for Moral Rationalism According to what I am calling “rationalist moral realism,” all moral principles are eternal verities. Cudworth’s Treatise Concerning Eternal and Immutable Morality is a classic exposition of such a view.2 Although I will refer to this sort of view as “moral rationalism,” it should not be confused with forms of moral rationalism that make assertions about moral motivation. Neither should it be conflated with the weaker rationalism that is currently more common, which asserts only that some moral principles can be established a priori (e.g., Smith 1999). I have no need to deny this weak rationalism about moral principles—​though I  am not committed to it, either; my assumption that morality has an invariant core does not entail that we can generally know which elements of what appear to us to be morality’s well-​established principles (or any others) are actually true, let alone know them a priori. The moral rationalism that can be more troublesome in combination with other views asserts that all true, nonderivative moral principles—​all moral principles with a claim to be taken seriously—​are eternal and noncontingent, and thus are knowable a priori. The “rationalism” label goes back to the view’s sixteenth-​century versions, when a prominent debate concerned whether morality was grounded in God’s will (God’s commands), as the voluntarists held, or instead in God’s reason, as their rationalist opponents held (see Schneewind 1984, 1996). Cudworth’s position is simple: only the nature of a thing (such as an action) can make it good or evil. By a thing’s “nature,” he has in mind a metaphysically

2. The relevant excerpts from Cudworth’s treatise, first published posthumously in 1731, appear in Raphael (1969: I:105–​119).

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thick notion—​one that he explains in terms of the Aristotelian idea of a “formal cause” (in Raphael 1969, I:107). Establishing this simple claim is complicated, however, by the fact that, as he puts it (I:109): [T]‌here are some things which the Intellectual Nature obligeth to of itself and directly, absolutely and perpetually, and these things are called naturally Good and Evil; other things there are which the same Intellectual Nature Obligeth to by Accident only, and hypothetically, upon Condition of some voluntary Action either of our own or some other Persons. In the latter category, of things that are obligatory only accidentally, Cudworth counts things that are obligatory by the positive command of God, by the positive command of a legitimate temporal ruler, and by the making of a promise. Yet he also insists that unless we are very careful about how we understand this category of the accidentally good or evil, we are apt to be misled. Fundamental, for Cudworth, is his neo-​Platonist essentialism (as stated in a passage printed in Raphael 1969, I:111): 3 [I]‌f we would speak yet more accurately and precisely, we might rather say, that no positive commands whatsoever do make any thing morally good and evil, just and unjust, which nature had not made such before. For indifferent things commanded, considered materially in themselves, remain still what they were before in their own nature, that is, indifferent, because (as Aristotle speaks) will cannot change nature. And those things that are by nature indifferent, must needs be as immutably so . . . . What, then, has become of Cudworth’s seeming to allow that some things are accidentally good or evil? To square this concession to the appearances with his neo-​ Platonism, Cudworth insists that the moral principles, as general characterizations of certain action types, remain eternal and invariant (printed in Raphael 1969, I:111): [A]‌ll the moral goodness, justice and virtue that is exercised in obeying positive commands, and doing such things as are positive only and to be done for no other cause but because they are commanded, or in respect to political order consisteth not in the materiality of the actions themselves,

3.  Compare with Richard Price, A Review of the Principal Questions of Morals, in Raphael (1969, II:147–​148).

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but in that formality of yielding obedience to the commands of lawful authority in them. Just as when a man covenanteth or promiseth to do an indifferent thing which by natural justice he was not bound to do, the virtue of doing it consisteth not in the materiality of the action promised, but in the formality of keeping faith and performing covenants. Wherefore in positive commands, the will of the commander doth not create any new moral entity, but only diversely modifies and determines that general duty or obligation of natural justice to obey lawful authority and keep oaths and covenants, as our own will in promising doth but produce several modifications of keeping faith. This distinction between form and matter, then, is supposed to reconcile the immutability of good and evil with the fact that certain actions can be accidentally good or evil. As a result, as Mark Schroeder (2005, 11) comments, Cudworth’s view “is not only committed to the thesis that the basic moral truths are eternal and immutable. It is actually committed to the thesis that which actions are right or wrong does not and cannot change from one possible situation to another.” Cudworth’s position seems sharply to clash with my own, which, like divine voluntarism, holds that among the basic moral truths (if we must speak that way) are some that authorize agents to introduce new moral norms. But why? On what basis does Cudworth resist the possibility of including such a second-​order norm among the basic moral truths? Here, I will follow Schroeder’s suggestion, which is that Cudworth supplemented the metaphysical assumptions already mentioned with certain assumptions about how moral truths can be explained or justified. Schroeder distinguishes two possible reconstructions of Cudworth’s argument against divine voluntarism. The simpler of these two possibilities is that Cudworth assumes that all explanations of why someone ought to do an action must follow the same pattern, which Schroeder (2005, 11) calls the “Standard Model”: The explanation that X ought to do A because P follows the Standard Model, just in case it works, because there is (1) some further action B such that X ought to do B, and (2) not just because P; and (3) P explains why doing A is a way for X to do B. The divine voluntarist wants to say, about any action A that we ought to do, that the explanation for it is that it was commanded by God. But now, if we ask why we ought to obey God, the Standard Model forces this question to keep repeating itself without answer, in a never-​ending, uninformative circle.

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Before looking at Schroeder’s second reconstruction of Cudworth’s argument against the voluntarists, let’s pause to consider how Cudworth’s rationalism can avoid this kind of regress. One ought to keep one’s promise to sing at one’s brother’s wedding not because that is something right in itself (for one’s singing might be quite indifferent), but because so doing is an instance of keeping faith. If we then ask why we ought to keep faith, it seems to be that keeping faith is right (intrinsically or by nature), and failing to keep faith is wrong intrinsically or by nature. In other words, the suggestion seems to be that we can and must stop our questioning when we arrive at action types that are right or wrong by nature—​at least when we can discern this. It seems, in other words, that Cudworth does not apply to his own view the requirement that all moral explanations must follow the Standard Model. Focused more on Cudworth’s polemic against the voluntarists, Schroeder notes that Cudworth does not strictly apply this requirement to their view, either. Instead, he recognizes that the voluntarists could instead rest on the following constitutive claim (Schroeder 2005, 17): For God to have commanded X to do A is just what it is for it to be the case that X ought to do A. As Schroeder reports (2005, 20), Cudworth offered independent arguments against this claim, as did the eighteenth-​century rationalist Richard Price—​each anticipating G. E. Moore’s Open Question Argument. Hence, if Cudworth and Price could be allowed the conjecture that “[a]‌ll normative explanations must either follow the Standard Model or the Constitutive Model” (Schroeder 2005, 21), then their arguments create serious trouble for the voluntarists. What sort of disjunction is this? Stepping back from Cudworth’s fight with the voluntarists and viewing the competing positions generically, we can see attractions and disadvantages to each. In the rationalists’ favor is the thought that certain actions are wrong, and certain actions are morally required, independent of what God or anyone else may have commanded or reflectively agreed upon. Yet a rationalism of this type is vulnerable both because of the metaphysical categories that it deploys—​its essentialist action types—​and because it seems insufficiently flexible to make sense of certain moral claims that seem intuitively compelling to us. Here, I have in mind claims arising in relatively novel and contingent sorts of social practices, such as that of medical research. Morality in these contexts seems to take a definite shape that is ill explained by attempts simply to subsume actions under eternal types. Giving placebos to medical research subjects on the control arm of a drug trial where a proven treatment exists may in certain circumstances

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be disrespectful; but it vastly abbreviates the story to claim that the reason why it is wrong to do so—​when it is—​is simply that doing so is an instance of acting disrespectfully. Correspondingly, voluntarism is attractive because it offers a way in which morality can be made more specific to any extent, whether in response to conflicts or to novel situations; but its disadvantage, as we have just seen, is that, when taken as a fully general account of normative explanation, its constitutive condition generates a troublesome circularity. And, again, many think that certain actions seem right and others seem wrong, independent of any authoritative action. I do not mean to be offering an account of the ultimate grounds of moral normativity. The stance I have taken, however, would fit (at least in spirit) with a nonexclusive disjunction of a realist condition (some actions are simply right or wrong, timelessly—​whether because of their “nature” or for some other reason) and a modified voluntarist condition (some are right or wrong as the result of the moral community’s authoritative determinations). Further, if I am correct in thinking that these authoritative determinations are limited to being specifications of eternal norms, then a sufficient, albeit partial explanation of moral normativity could get by with only morality’s eternal core and the Standard Model. Given the restriction of the moral community’s determinations to specifying antecedent, and ultimately eternal norms, any action that one ought to do as a result of these determinations will be one that could perhaps be explained as representing a way for the agent to satisfy the eternal norm, to which the authoritative determination adds specificity.4 Yet if the Standard Model could thus apply within my account to arguments from eternal principles, then we would have reason to suspect that this model does not offer a fully adequate account of such nonfundamental moral explanation. Consider some examples. If I have promised to take my niece out on the town for an exciting evening on her birthday, it may well be that I can equally well fulfill that obligation by taking any of a number of distinct types of action—​by going with her on a harbor cruise, to the circus, or to a concert, for instance. As far as promise-​keeping is concerned, these options are morally indifferent, each being a perfectly good way of fulfilling the promise. The general requirement to treat people with respect offers a less tidy picture. It does not of itself generate such discretely specifiable instances of satisfaction. It is always in play, yet it does not require one to do everything that would count as an instance of it. In such a case, it starts to become plain how useful it

4. See Richardson (1990b, 295). In the text, I abstract from the question of whether the eternal norms are universal generalizations.

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would be to be able to call upon more specific moral norms. Any adequate explanation of why it is under some circumstances impermissible to give placebos in trials of new drugs where there exist proven ones must do more than point to the fact that refraining from so doing is a way of respecting the participants. It must also explain why alternative ways of respecting the participants—​say, by offering them free posttrial care for the condition under study—​would not been morally adequate. If there are multiple eternal principles from which moral explanation might start—​as Cudworth contemplates—​then an adequate account of such an explanation should explain what counts as an adequate way of resolving conflicts among them. And when we examine that issue, we may well find that—​ as I suggested in §I.3—​some of the conflicts among them are not satisfactorily resolvable except via the authoritative intervention of the moral community. Thus, the Standard Model of normative explanation is overly simple. To reinforce this claim and explain it in another way, let me return to Setiya’s distinction (§5.4), which differentiates between two pathways for deriving more specific norms. The first works simply with a principle of obligation, of the form O(p). The way it proceeds is by interpreting p conceptually, examining that it entails in practice, and so on, so as to draw out implications, in the context of action, regarding what ways of doing p are available. The second, instead, works from a conditional of the form, q → O(p), where q is the proposition to the effect that a given moral power has been exercised. Whereas the first pathway is concerned only with unpacking the act-​type designated by p—​Cudworth’s preoccupation—​as well as its implications in practice, the second pathway also is concerned with what moral powers have contingently been exercised. As the conservativism of Cudworth’s Platonist realism helps bring out, a salient difference between these two pathways remains, even when the second is constrained to settle only on obligations that represent specific ways of fulfilling prior obligations. If we switch from speaking of moral explanation to metaphysics, we might be concerned with the way that strong supervenience constrains the relationship between moral principles and obligations as they arise in the context of action.5 Consider the following statement (Swinburne 2015, 618):

5.  Compare with Enoch (2011b, 145), which reconciles strong supervenience with robust moral realism by arguing that it is “precisely the nature of the (basic) moral and other normative norms [that] they are norms with maximal, and even modally maximal, jurisdiction,” implying that, by the same token, “there is no metaphysically possible world where the basic norms are different” (146).

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[I]t must be that if there is a metaphysically possible world in which an action a individuated by a conjunction of all its nonmoral properties is bad, there could not be another world W* that is exactly the same as W in all nonmoral respects, but where a is not bad. Therefore, for every true contingent moral proposition (e.g., ‘action a was morally good’, a being individuated by some unique description) there is a metaphysically necessary proposition (e.g., ‘all actions of nonmoral kind Z are morally good’) that together with a contingent nonmoral proposition (‘action a was an action of kind Z’) makes the contingent moral proposition true. Here, my point is only that even if we are pushed toward accepting, in principle, that metaphysically necessary or otherwise eternal principles must in some sense underlie all moral claims, we should insist that the items in parentheses here really do provide only one sort of example of the form that these must take. When the pathway of derivation goes via the exercise of moral powers, for instance, these propositions might center on those, rather than merely on the implications of the act-​type. As far as I can see, the entire story that I have given of how new moral norms can arise is fully compatible with having a naturalistic basis. Hence, just as moral facts pertaining to principles supervene on the nonmoral facts, so too can moral facts pertaining to which powers have been exercised. Again, the point is that, Cudworth’s preferences to the contrary, we should not privilege a version of the Standard Model that focuses solely on unpacking the practical implications of a given act-​type. I conclude, then, that however dangerous Cudworth’s arguments may be to a divine voluntarist who purports to provide an adequate explanation of all normativity, his plausible arguments about the nature of normative explanation do not threaten the project that I have undertaken in this book. It is only when his plausible arguments are supplemented by his dogmatic assertions that intentional actions—​not even God’s—​cannot alter morality’s starting-​ points, which are given by the supposed nature of the relevant act-​t ypes, that his view becomes incompatible with mine. Rather than engage with such a heavy-​duty, neo-​Platonist rationalism, I will turn to a much more recent argument that, while it may in fact have arisen from neo-​Platonist commitments, sophisticatedly seeks to keep its metaphysical commitments minimal:  G. A.  Cohen’s argument that all fact-​sensitive moral principles must ultimately rest on fact-​insensitive ones.

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9.2 Cohen’s Argument Against Fact-​Sensitive Principles G. A. Cohen (2008, 229) characterized “fact-​sensitive principles” as principles of the form, “X ought to do A because P,” where P is a fact, or purported fact, that “is, or corresponds [or would correspond] to any truth other than (if any principles are truths), a principle, of a kind that someone might reasonably think supports a principle.” Statements of this form, readers will recall, are the explananda to which the Standard Model applies; but Cohen is focusing on principles that incorporate the “because P,” and hence are explicitly fact-​sensitive. Cohen argues that all fact-​sensitive moral principles are ultimately grounded in fact-​insensitive ones—​and thus in principles that either are, or are held to be, noncontingent, eternal verities, or are the object of unconditional commitment (if moral cognitivism is false). Cohen’s argument arises dialectically.6 The principal object of his criticism is John Rawls’s view that “moral theory must be free to use contingent assumptions and general facts as it pleases” (1999b, 44). Thus, for example, Rawls’s arguments for justice as fairness over utilitarianism work from the assumption that the human societies to which the principles are to apply are characterized by the “circumstances of justice” (1999b, §22). These include moderate scarcity and the existence of a reasonable pluralism of conceptions of the good that would not disappear unless oppressive force were used to repress dissent (Rawls 2005, 36–​37, 66). Indeed, in addition to assuming these facts, Rawls effectively builds them into his principles. Thus, Rawls is committed to positions such as the following: (P1) Given (and because of ) the circumstances of justice, including the fact of reasonable pluralism, the equal basic liberties of citizens should be given priority over equalities of advantage. Cohen argues that general principles of this kind cannot be normative bedrock.7 Instead, the normativity of such fact-​sensitive principles, as he calls them, must be grounded on some more ultimate principle. If that more ultimate principle is also fact-​sensitive, then the same is again true. Ultimately, the normativity—​the

6.  Cohen’s argument was anticipated by Amartya K.  Sen in the first edition (published in 1970) of Sen (2017, in which see 111–​112). 7. Officially, Cohen’s view hedges about the possibility of moral particularism. His argument takes hold only if there are (or: we have) some general moral principles, and only if some of these are (or: we take it that some of these are) supported by facts (2008, 247–​248). But he does indicate that he believes that there are (or that we have) some general moral principles and that some of these are (we think) supported by facts (248).

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ought or should—​of a general principle is adequately grounded only if it can be derived from a general principle that is not fact-​sensitive in this sense. Cohen’s thesis is not about moral epistemology, but about the nature of normative grounding, which constrains any apt moral epistemology. He nonetheless presents his argument in a way that seeks to avoid presuming cognitivism about moral claims. Accordingly, he indicates that his argument can be given either a logical or a psychological interpretation. As he writes, “My thesis . . . is not restricted in scope to principles that are in some or other sense correct. The thesis applies to anyone’s principles, be they correct or not, so long as she has a clear grasp both of what her principles are and of . . . what she thinks are the grounds of the principles” (233, emphasis omitted). His assumption seems to be that those with a clear grasp of how their principles are grounded will be constrained by the fundamental feature of normative grounding that he claims to uncover, whether or not what is being grounded has cognitive content. If cognitivism is true, then general normative principles must ultimately be grounded in the truth of fact-​insensitive ones. If noncognitivism is true, then general normative principles must ultimately be grounded in the presumed a priori necessity of certain commitments. As in the case of rationalist realism in general, this claim by itself is not incompatible with my view. The ultimate, a priori principle might take the form of what we can call a partitioning principle. This partitioning principle would invoke a disjunction of different morally possible worlds that took account of all the ways that moral norms might be authoritatively specified in the course of history by the moral community, compatible with the eternal, objective core, and spell out which norms would apply in each stage of each world.8 Ironically, such an ultimate principle would in one sense be ultimately fact-​sensitive, for it potentially specifies a different set of valid norms for each permissible pathway of specification. But it is not fact-​sensitive in Cohen’s official sense, as it does not assert or imply that the facts mentioned are, or are taken to be, the ultimate grounds of

8. As I here am understanding the idea of a “morally possible world,” such worlds are individuated solely by reference to which moral principles are validly binding therein. Accordingly, I am not counting a world in which some person does something morally wrong as “morally impossible.” For simplicity of presentation, we might suppose that the morally possible alternative pathways of specification can be represented exhaustively as a finite set of worlds (w1, w2, w3, . . ., wn). Abbreviate “wn obtains” as “Wn.” Because these are the only permissible possibilities, letting “□” stand for moral necessity, we have a morally necessary disjunction: □(W1 V W2 V W3 V . . . V Wn). Representing the different sets of norms valid in a given morally possible world in terms of the propositions (p1, p2, p3, .  .  .  pn), the one ultimate norm could then have the following form: □(W1 V W2 V W3 V . . . V Wn) & [(W1 →p1) & (W2 →p2) & (W3 →p3) & . . . & (Wn →pn)]. An ultimate norm of this form is what I mean by a “partitioning principle.” I am grateful to Gabriel Broughton for suggesting the usefulness of a disjunctive principle.

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anything; rather, they simply represent one way to partition the possibilities. The ultimate ground would be the relevant partitioning principle. It appears, however, that Cohen assumes that “the [fact-​insensitive] principles at the summit of our conviction” will be more perspicuous and more readily endorsable on reflection than any such cumbersome construction (2008, 29). He has in mind simple, abstract, and appealing principles, such as “that one ought to promote fulfilling lives” (293) and that one ought to act justly. What sets him on a collision course with a view like mine is not his position that all ultimate principles are fact-​insensitive, but his argument for this position, which purports to create pressure toward arriving at such abstract, simple, and undifferentiated principles.

Cohen’s Argument As I  have indicated, Cohen’s claim that all moral principles are ultimately grounded in fact-​insensitive ones is officially supposed to be neutral as to cognitivism. Accordingly, it is meant to simultaneously characterize both what the ultimate grounds of moral principles must actually be like (if there really are any) and what the structure of a clear-​headed person’s commitments must look like. If what the ultimate grounds must actually be like is not constrained by human psychology, however, there are all sorts of possibilities. The partitioning principle shows that even if there must be a fact-​insensitive principle that ultimately grounds every moral principle, that in no way rules out an account like mine, which accords specificatory power to the moral community. Cohen’s argument for his claim, however, is cast on the more psychological side; and the way that it develops does pose a threat to my view. I will first lay out that argument and then, sticking with the psychological terms that give it its threatening cast, I will show how this threat can be neutralized. As Thomas Pogge (2008) has suggested, Cohen’s argument that all general moral principles are ultimately grounded on fact-​insensitive principles is best understood in terms of a series of cross-​examining questions. Principle (P1)’s fact-​sensitivity is explicit. About (P1), the first question would be: What is the mention of the circumstances of justice doing there in the first place? Certainly, as Rawls develops his view, it is meant not to be an irrelevant aside. Cohen apparently assumes (controversially, as we shall see) that it is there because (P1) implicitly indicates that the fact that we live in the so-​called “circumstances of justice” supports or—​as he prefers to say—​grounds the claim that the equal basic liberties of citizens should be given priority over equalities of advantage. In any case, his argument concerns itself only with those who cite facts as grounding their principles.

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Cohen’s illustrative cross-​examinations thus begin with someone who holds: (P2) Given (and because of ) the circumstances of justice, the equal basic liberties of citizens should be given priority over equalities of advantage; and who also, when asked to give grounds for this principle, cite (among other things) the following further fact: (F2) Our situation is characterized by the circumstances of justice, which imply that giving the equal basic liberties of citizens priority over equalities of advantage is practically necessary to avoiding oppression. If the objective moral facts are such that (F2) grounds (P2), then, Cohen plausibly asserts that there must be some explanation for this. Looking at things subjectively, the requirements of clear-​headedness demand that someone who takes (F2) to ground (P2) be able to cite some explanation of that. As he memorably insists, there must always be some explanation of “why a ground grounds what it grounds” (Cohen 2008, 236). Thus, there must be some explanation of how (F2) grounds the priority of liberty. Again, this much I can accept, if it is allowed that the ultimate explanation could take the form of the partitioning principle, but that is not the type of ultimate explanation that Cohen provides in his illustrations. And in this case, the fact-​principle pair carries the likely explanation on its face, which would appeal to the following principle: (P3) Oppression ought to be avoided. (P3) is a good candidate for being at the end of the psychological line: unlike a partitioning principle, it is a perspicuous, abstract, and simple principle that we can support without citing any further facts. The picture is that as one proceeds up this chain, the degree of dependence of principles on contingent facts is progressively reduced until it goes to nil. In other words, as one moves upward in the chain, one proceeds at each step to a principle that holds in a broader range of possible worlds until one arrives at one that holds in all possible worlds. Cohen argues that fact-​sensitive principles, such as (P2) is revealed to be by this cross-​examination, cannot be justificatorily foundational; they must in fact rest on some underlying, “more ultimate” principle that is fact-​insensitive. Principles that are fact-​insensitive need not rest on anything else. Thus, the justificatory bottom line must always be given by some fact-​insensitive principle

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or other. This constraint on the structure of normative or moral grounding constrains all possible groundings in which moral principles figure.9 One might imagine that cross-​examination of (P3) could reveal that it was implicitly fact-​sensitive, and that the cross-​examination could thus continue indefinitely. Cohen’s argument for the necessity of fact-​insensitive principles, however, invokes an assumption that the questioning will always come to an end in a fact-​insensitive principle. In support of this assumption, he challenges his opponents to come up with a realistic sequence that continues even beyond five steps. And it is, indeed, difficult to come up with a very long sequence of the type that he has in mind. Although Cohen’s argument for the necessity of fact-​insensitive principles echoes ancient arguments for the existence of a unique, ultimate end, he neither takes it in that direction nor builds it from the same materials. His focus on the explanation for how the facts invoked by fact-​sensitive principles help ground them does not push toward a single, “most ultimate” principle underlying all such explanations, along the lines of Aristotle (Nicomachean Ethics, 1097a30). Rather, Cohen is happy to allow that there will be multiple fact-​insensitive principles that provide the normative bottom line. What his setting the argument in the context of the psychology of someone with clear-​headed commitments does allow him to do, however, is plausibly to proceed up a chain of ever less fact-​sensitive principles without conditionalizing or partitioning the possibilities in the mode of a partitioning principle. If all moral truths were grounded by a priori ultimate principles that took the simple, unconditionalized form of (P3), that would indeed spell trouble for my argument. To show that the psychology of the clear-​headed need not press us in this direction, I will build on two objections to Cohen’s argument—​one that stops the press upward toward a more ultimate principle by interpreting fact-​sensitivity as modesty or humility, and another that builds on the last chapter’s explanation of the fact that, while sometimes final ends are ordered asymmetrically, they need not always be so ordered.

Fact-​Sensitivity as Modesty: Pogge’s Critique Pogge’s central objection to Cohen’s argument builds on the observation that there are two ways that a principle can be sensitive to a fact. These correspond to two different senses in which the fact implicitly points toward a grounding of

9. The hedge about groundings in which principles figure is needed because Cohen leaves open the possibility that moral particularism is correct (2008, 248).

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the principle. On a “broad understanding” of fact-​sensitivity, a principle is fact-​ sensitive just in case a fact is (objectively or subjectively) a sufficient ground for it. On a “narrow understanding” of fact-​sensitivity, by contrast, a principle is fact-​ sensitive just in case it invokes a fact as a necessary and sufficient ground for its normative portion (Pogge 2008, 465). Cohen’s argument presumes the narrower understanding, and hence assumes that unwillingness to maintain commitment to a principle when the relevant fact is denied is a mark, within the psychology of a clear-​headed person, of the commitment to that principle being fact-​sensitive (Cohen 2008, 234). Intuitively, however, it seems that a principle in the form of (P1) or (P2) could be understood to be fact-​sensitive in either a narrow way or a broad way. The first relevant implication of this distinction is that only the latter, narrower understanding entails pressure toward grounds that are ever less fact-​ sensitive. If the fact in question merely points to a sufficient ground for the principle, the resulting fact-​sensitivity provides no reason to think that the pointed-​to grounding principle holds (or would be committed to) in a broader range of possible worlds. The initial fact-​sensitive principle might have some other sufficient ground that would establish it even more broadly. For example, using our Rawlsian illustration, taking (F2)–​(P3) as providing merely a sufficient ground for (P2) is consistent with holding that priority should perhaps be given to lib­ erty, whether or not doing so is necessary to avoid oppression. Only if (F2)–​(P3) were put forward as a necessary as well as sufficient ground for (P2) would it seem that commitment to the priority of liberty could not rationally survive a denial of its being necessary to avoiding oppression. And only if (P2) is shown to be more fact-​sensitive than (P3) in this way does (P3) emerge as even a candidate for a fact-​insensitive principle. Second, this distinction undercuts the rational pressure toward fact-​ insensitive grounds also in a more holistic way—​one that has to do with the epistemological economy of a finite agent with a psychology even roughly like ours. Epistemologically, as Pogge notes, rational believers are not required to know the necessary and sufficient conditions for all that they believe. Similarly, those with rational and clear-​headed commitments are not required to know the necessary and sufficient conditions for the well-​groundedness of their commitments. It suffices that they have sufficient grounds for their commitments. The reasons that might rationally motivate stopping short of seeking necessary and sufficient grounds for one’s normative commitments are quite varied. For instance, we might be unsure whether our normative commitments would, in fact, well apply in conditions far different from our own. We might also be unsure as to whether we would retain our current conception of the good in radically different circumstances. Most generally, one might simply invoke the aptness of

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“modesty about the range of one’s moral principles” (Pogge 2008, 469). In many cases, clearheadedness about the sufficient grounds of one’s commitments may simply demand that one be modest about how to specify their modal range. These two implications of the distinction reinforce one another. A  reasonable modesty about the limits of one’s understanding could explain the rationality of not always pressing for grounds that are necessary as well as sufficient. Further, this explanation, in turn, can make sense of why facts are often invoked as pointing toward grounds, even though those grounds are merely sufficient. The attitude evinced by such a combination would not rationally imply withdrawing commitment to the principle if the fact is found not to obtain, but it would not rationally imply maintaining that commitment, either. Once we allow for the possibility of broadly fact-​sensitive principles, then, these two implications, taken both severally and together, show that Cohen’s argument no longer presses us toward the idea that there is an ultimate set of principles all of which are fact-​insensitive.

Symmetrical Grounding of Fact-​Sensitive Principles: Moss’s Objection Pogge’s critique helps remind us that, in practice at least, it is often rational to have quite modest expectations about the sort of grounding available for moral principles. But what would moral grounding look like if it did not amount to derivation from a priori principles? Sarah Moss’s objection to Cohen, which implicitly works within the practical psychology of someone with clear-​headed commitments, helps remind us how patterns of mutual support, rather than linear derivation, can provide grounding. We have Moss’s objection only in a footnote of Cohen’s (2008, 244n.). As I would reconstruct it, it starts with the observation that two things we tend to care about for their own sake are preserving peace and maintaining order—​Peace and Order, for short. Naturally, though—​as is often the case, these final ends are also sought, and worth seeking, for the sake of other things as well. The way that our world contingently works, she suggests, is that securing each of these ends is a necessary means to the other: war (the absence of peace) destroys order, and chaos (the absence of order) brings war. Hence, we can start with either of these ends and go to the other, via the kind of means-​end logic that moves Cohen’s ultimate-​ground-​seeking argument along. Suppose that we start with an explicitly fact-​sensitive principle along these lines: “Because maintaining peace is necessary to maintaining order, we ought to maintain peace.” Following Cohen’s pattern of argument, we can show that this is grounded on the principle that we ought to maintain order. If, instead, we start

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with “Because maintaining order is necessary to maintaining peace, we ought to maintain order,” we can push toward the grounding principle that we ought to maintain peace. Each of these principles is “ultimate,” in the sense that it stands on its own; yet, given the contingent instrumental connections between the two, each also grounds the other. There is, at some level, a symmetry in the grounding relations between the two. While Pogge’s critique casts doubt on whether the nature of fact-​sensitive principles always gives a foothold for Cohen’s argument that they are ultimately grounded in fact-​insensitive principles and makes room for a kind of epistemic modesty, it does not positively explain how moral grounding can occur without ultimately relying on fact-​insensitive principles. Moss’s objection to Cohen, which gains strength from the conclusions of Pogge’s critique, does suggest an alternative model of grounding, for it illustrates how two fact-​sensitive principles can each ground the other. Her attack squarely targets Cohen’s assumption that when one principle explains why another’s factual component grounds its normative component, the former is necessarily “more ultimate” in the sense defined in this discussion. This sense, again, hinges on the truth of (or commitment to) the explaining principle surviving the falsity (or denial) of the fact in question, and the explained principle not doing so. Cohen objects that this suggestion that each of two ends or principles can ground the other means that the back-​and-​forth between the two “can go on forever.” He asserts that this is “plainly crazy: chaos and war cannot take in each other’s normative laundry like that, and mutual laundering remains open to a charge of pyramid selling even if the circle is expanded” (2008, 244n.). But there is nothing crazy about this. Completely laying out the grounding relations among the simple principles, here, requires laying out four facts—​the last two of them contingent: 1. Peace is worth preserving for its own sake. 2. Order is worth maintaining for its own sake. 3. Preserving peace is a necessary means to maintaining order. 4. Maintaining order is a necessary means to preserving peace. (F1) and (F2) noncontingently ground the simple principles that peace ought to be preserved and that order ought to be maintained, respectively. (F3) and (F4) add contingent grounding to these same principles. There is no call, in reason or in normal psychology, to repeat or reiterate any of this even once, let alone ad infinitum. There is nothing crazy about both pursuing Peace for the sake of Order and pursuing Order for the sake of Peace.10

10. More precisely, if there is something amiss with seeking each for the sake of the other, it has

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Cohen’s mention of “pyramid selling” is revealing. It is clear that his argument has been influenced by parallel examinations of individuals’ preferences and evaluations (e.g., Cohen 2008, 233n, 272). Cyclicity, or failure of antisymmetry in an individual’s preference ordering, does indeed threaten to turn that individual into a so-​called money pump. Someone who strictly preferred A to B and B to A could be asked to pay just a small fee for every shift from A to B and back again, ad paupertatem. But the context of moral principles is different: We are not talking about preferences among options, which one might alter back and forth; neither are we presuming a maximizing form of rationality (as is the business of preference theorists to try to construct). In the moral context, it is Cohen who is engaged in pyramid selling, as he is trying to sell us on a picture of principles as converging, in a roughly pyramidal way, on ever more ultimate ones. If there is a puzzle here, it is why Cohen is so resistant to Moss’s quite ordinary example. In my view, one part of the explanation, pertaining at least to the psychological side of the picture, is that he was captive to a modern moral psychology that is surprisingly unable to model the kind of mutual reinforcement of ends that Moss’s example illustrates. A moral psychology based on the traditional category of final ends, such as was sketched in §8.3, is better suited to capturing the kind of familiar relation among ends that Moss’s example involves. On the understanding developed there, it makes perfect sense to say that a final end is sought both for its own sake and for the sake of something else. On the metaphysical side of things, Cohen perhaps assumes that the grounding relation is necessarily asymmetrical. Gideon Rosen, for instance, takes it as axiomatic that the grounding relation is strongly asymmetric: Necessarily, if p is among the fact that grounds q, then q is not among the facts that grounds p (Rosen 2010, 115). This axiom seems to imply that there must be something wrong with an example such as Moss’s. In response, let me begin the observation, well bolstered by Rosen’s work, that grounding relations are quite various. The end-​means relation that is involved in Moss’s example—​and almost all of Cohen’s examples—​is a paradigmatic element of the grounding of claims about what ought to be done. Further, where there are two ends such as Peace and Order, each valuable (or valued) for its own sake, there appears not to be anything illicit or wrongheaded in holding both that avoiding war is grounded as a necessary means to achieving order, and that avoiding disorder is grounded as a necessary means to achieving peace. If the

to do with a feature of ends upon which Cohen does not remark, except to disparage it as not being the essential concern of ultimate principles—​namely, their role in helping regulate our choices (2008, 265f.). On the importance of this regulatory feature, see §8.3.

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strong asymmetry axiom cannot capture this complex possibility, then it is so much the worse for the axiom. Whether the example really poses a counterexample to the strong asymmetry axiom, however, is an open question, and beyond the scope of my inquiry. Whether it does or not depends exactly on how, precisely, one analyzes end-​ means grounding.11 Accordingly, we can take Moss’s case to indicate how mutual support can be built among principles in a nonlinear way that does not generate an upward push toward to the fully fact-​independent.

9.3 Working with Moral Principles in Medias Res I began this chapter by reminding my readers of §I.1’s simple way of reconciling this book’s proposals about moral authority with moral realism—​namely, by positing second-​order norms that authorize the moral community’s exercise of the power to specify norms. In the last section, I bolstered this idea by reference to the idea of a higher-​order partitioning norm. In examining Cudworth’s view in §9.1, we saw, with Schroeder’s help, that it is not Cudworth’s realism as such that poses any trouble to my view; rather, it is his restrictive assumption that all moral explanations must follow the pattern of the Standard Model in a way that is limited to unpacking the act-​types designated as morally relevant by the eternal norms. I drew on Setiya’s distinction (§5.4) to help characterize the quite different pathway of explanation that goes via the contingent exercise of moral powers. Our examination of Cohen’s argument that all moral principles are ultimately grounded in fact-​insensitive ones prompted a further specification of how a rationalist realism could be reconciled with a view such as mine—​namely, via an ultimate principle in the form of a partitioning principle, which is not grounded in fact despite its exhaustive mention of the alternative contingent ways that moral principles might permissibly be specified. Further, I argued that Cohen’s case for the conclusion that all moral grounds must ultimately be fact-​insensitive overlooks significant reasons for resting content with sufficient, as opposed to necessary-​and-​sufficient, conditions.

11.  In personal correspondence, Rosen suggested two ways that Moss’s example might be reconciled with the strong asymmetry axiom. The first emphasizes that partial grounding is all that is invoked in each direction. The second treats “Order ought to be maintained” as being grounded by (“Peace ought to be preserved” & “Order is a necessary means to peace”), and “Peace ought to be preserved” as being grounded by (“Order ought to be maintained” and “Peace is a necessary means to order”). On this second reading, as I understand it, although each principle is referred to in the description of the compound fact that grounds the other, neither appears as an independently grounding fact. Each of the grounding facts is a conjunction nonidentical to either of the grounded facts.

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In addition, I argued that Cohen’s argument ignores the way in which broadly fact-​sensitive principles can reinforce each other. If broadly fact-​sensitive principles can ground each other in the way that Moss’s example suggests, then perhaps there are no ultimate, fully fact-​insensitive principles. In short, while I  could, compatibly with maintaining my view about the moral community’s moral authority, concede the claim that all moral principles are ultimately grounded in eternal, fact-​insensitive ones, the weaknesses in these two leading arguments for this claim make it doubtful that this must be conceded. The weakness of these two arguments for the claim that all moral principles are ultimately grounded in ones that are eternal or fact-​insensitive also leave us without strong reason to follow Cohen in disparaging the importance of fact-​ sensitive principles. Cohen puts a special spin on the conclusion of his argument about the ultimacy of fact-​insensitive moral principles (2008, 265–​266): it is a fundamental error of [Rawls’s] A Theory of Justice that it identifies the first principles of justice with the principles that we should adopt to regulate society. Rawls rightly says that “the correct regulative principle for anything depends on the nature of that thing”12:  facts are of course indispensable to the justification of rules of regulation. But rules of regulation necessarily lack ultimacy . . . .” Cohen thus distinguishes between first principles and rules of regulation and belittles the latter. To this derogation of mere “rules of regulation,” I have four replies. The first and most basic of these is that this is simply name-​calling. If a moral norm is established via the moral community’s authoritative ratification, I do not care if this new norm is called a rule of regulation. If it owes its grounding to more ultimate principles but cannot be deductively derived from them without mentioning the moral community’s authoritative act, then my account has been established. I am not concerned with whether this new moral norm is “ultimate” or not. The second point is that although the moral principles that we can reflectively access because they play a role in regulating our practices are perhaps not ultimate grounds, they are at least accessible for guiding deliberations. They can serve the deliberation-​g uidingness desideratum for moral principles defended in §1.2. The ultimate, eternal principles posited by Cudworth and Cohen, by contrast, could retain their ultimacy despite being completely beyond our ken. Perhaps

12. Cohen here cites Rawls (1999b, 25).

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we will never be able to figure out what a priori act-​types ultimately settle which actions are right or wrong. Perhaps we never will be able to trace all our moral questioning to ultimate, fact-​insensitive principles that we could grasp. If either of these possibilities holds, these ultimate principles will prove to be posits of interest only to vain metaphysicians. What Cohen disparagingly calls “rules of regulation” are at least principles that we can live by. A third response to Cohen’s disparagement of “rules of regulation” echoes a point made previously in relation to Cudworth:  If, as seems likely, there are multiple ultimate principles, it is to be expected that they will sometimes conflict with one another contingently, in practice. Since, if they are equally ultimate, they will not settle these conflicts themselves, this seems to leave this task of working out what we ought to do to us—​where that might include our acting together, as the members of the moral community, to ratify new moral norms. My fourth and final reply invokes the spirit of the constructive ethical pragmatism (CEP), set out in c­ hapter 1. It may well be that the better way to work toward a perspicuous and well-​justified account of the moral principles by which we ought to live is not doggedly and exclusively to pursue a priori conceptual inquiry, but to work with our considered moral judgments at all levels of generality, finding acceptable ways of reconciling them when they clash—​ways that work at least in a world like ours—​and seeking to put them in order by constructing theories with relatively specific tasks. Such an approach need not presume that no a priori grounding exists for morality. It is, rather, a reasonable way to honor our moral commitments and to work out how better to fulfill them without presuming to claim access to a purely a priori grounding for them. Even if there does exist an eternal, ultimate grounding for some moral principles, then, it can leave room for interesting, noneternal moral principles and leave us as philosophers—​and us as members of the moral community—​reasonably free to develop moral principles that are not presumed to be eternal and that may in fact not be so, although they bind us in the actual world.

10

O B J E C T I V I T Y A N D P AT H -​D E P E N D E N C E

In the last chapter, I  argued that the moral community’s interstitial authority to put new moral norms in place is compatible with a rationalist realist’s view that morality’s ultimate grounds are timeless. My argument exploited the possibility that the ultimate grounds could take a wide variety of forms. Critics will point out, however, that this way of reconciling my proposals with rationalist realism’s claims about moral judgments’ ultimate truth-​conditions leaves open the possibility that these are even more open to variation than I suggest. Beyond being sensitive to the contingent, authoritative introduction of new moral norms that fill in gaps in an objective core, these truth-​conditions might be so thoroughly sensitive to cultural context as to support an unqualified moral relativism regarding the moral norms binding on individuals. Having defended my view’s compatibility with rationalist realism in this way, then, I have opened it to the charge that it implies or gives rise to an objectivity-​destroying moral relativism, or to a functional equivalent thereof. The type of moral objectivity that concerns me here implies the existence of a framework shared among the relevant people—​all persons, in the case of morality—​that in principle would allow them generally to work out their differences reasonably and rationally.1 Accordingly, the two desiderata for a relevant account of objectivity are (1) that it grounds the possibility of moral disagreement; and (2) that it grounds the possibility that those who disagree reasonably resolve the moral disagreements that arise. Its being impossible

1. The qualifier “generally” here has two purposes: first, to leave room for there being a few disagreements that are too difficult to resolve; and, second, to insist that it is not enough, when the concern is with morality as a whole, to find one small set of issues—​even an important one, such as determining the principles of justice applicable to the constitutional essentials of a society—​on which agreement in principle can be reasonably worked out by bracketing a lot of other issues.

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for people to resolve their moral disagreements would seriously wound the unity of the moral community, as this notion was explicated in ­chapter 2. Of course, moral disagreement is common, but this does not show that reasonably resolving these disagreements is impossible. At the start of the U.S. Civil War, there existed an objective moral basis for resolving the dispute about the moral acceptability of slavery; but self-​interest, moral error, economic interests, and sectarian animosities were among the many contingent factors preventing that resolution from emerging. Moral relativism, in many of its forms, undercuts objectivity by implying that it is difficult in principle to locate any real disagreement between individuals who differ in their stances, attitudes, cultures—​or whatever it is to which moral truths are relative—​let alone for them to work toward a reasoned practical resolution of a disagreement. Moral relativism of a relevant sort is defined by T. M. Scanlon (1998, 328–​329) as “the thesis that there is no single ultimate standard for the moral appraisal of actions, a standard uniquely appropriate for all agents and all moral judges; rather, there are many such standards.” Now, far from arguing for rationalist moral realism, I have sought mainly to defend my view from criticism coming from that quarter. Thus, even if such realism could offer shelter from moral relativism, I could not comfortably avail myself of it. In fact, however, the rationalist moral realist’s insistence that there is always an ultimate grounding of moral judgments is also compatible with moral relativism. Each judgment has an ultimate ground, but there may be different ultimate grounds or standards for different agents’ judgments. Furthermore, having no single ultimate standard for the moral appraisal of actions is not the only way in which moral objectivity can fail. Scanlon contrasts moral relativism with what he calls “parametric universalism.” This view “allows for [context-​responsive] variations in what is right, by applying a fixed set of substantive moral principles to varying circumstances . . .” (Scanlon 1998, 329). I take it that parametric universalism, so defined, poses no serious concerns about objectivity. There is plenty of conceptual daylight, however, between it and moral relativism. In particular, there could exist unique ultimate standards—​or better, grounds—​that do not apply a fixed set of substantive moral principles to varying circumstances. An example of such a possible ground is a disjunctively structured ultimate ground such as a partitioning principle, which I  invoked in §9.2 when reconciling my view with rationalist realism’s insistence that there must be ultimate grounds for moral judgments. A partitioning principle allows that there are different standards applicable in the various different morally possible worlds.2 In 2.  On partitioning principles and what is meant, here, by a “morally possible world,” see ­chapter 9, n. 8.

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suggesting this, however, I was continuing to assume, as I have from the outset, that morality has a nonempty core of substantive, objective principles that are binding upon all persons. Suppose, however, that we dropped this assumption. Ultimate grounds no longer constrained by it could be such that there were not any fixed, substantive principles valid for all societies. David Copp’s society-​centered moral theory illustrates this logical possibility in another way. On this view, judgments about what is morally right or wrong are truth-​apt and can be true only if two conditions are met: that they comport with a society’s moral code—​a set of “standards” or principles—​and that this moral code is itself justified (Copp 1995, 223). A society’s moral code is justified “for the time being, given the cultural context,” iff the society would be rationally required, on the basis of its nonmoral needs and values, to select it over the alternatives or be permitted to continue with it (Copp 1995, 199–​200). Emphasizing that societies’ needs and values may well overlap, Copp notes the possibility that the society of all humans might share a justified moral code (222–​223). That is plausible enough. In addition, however, this view also leaves open a possibility that, while not counting as moral relativism in Scanlon’s sense, would substantively mimic moral relativism because there would be no substantive principles shared among different societies.3 It would not be moral relativism because each code would be grounded by the same rational standard of social choice among alternative moral codes; but it would mimic relativism because the moral codes of the various societies in question would not at all overlap. Since I have no intention of relaxing my assumption that there is a nonempty set of core, objective, and substantive moral principles binding on all persons, I  am not concerned here with unrestricted moral relativism or its functional equivalents. What I  am concerned with are the ways in which my account of moral authority might be thought to cause trouble regarding objectivity, despite its starting from this assumption. The questions for me thus become: 1. Do the newly introduced moral norms necessarily lack the desired objectivity themselves? 2. Would introducing new moral norms in the way that I am defending disturb the objectivity that (as I have assumed) morality enjoys independent of their introduction?

3.  Given the complexity of rationally evaluating alternative moral codes from the point of view of a society’s needs and nonmoral values, we might expect that because of holistic causal interactions among standards or principles, and because of tipping-​point phenomena, even fairly slight differences between two societies in their needs and nonmoral values might lead to the rational selection of radically different moral codes.

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After saying more about the kind of objectivity at issue here, I will pursue these questions first by looking at the process whereby new norms get introduced. We will then take a look at the resulting norms in two ways: one that looks ahead to the differences among possible, path-​dependent branching moral futures that the potential introduction of new moral norms allows, and one that looks backward to the issues that it raises about retrospective moral judgment. Finally, at the close of the chapter, I will consider whether the pervasive injustice and corruption that surround any actual process in our current world undercut the objectivity of the process of introducing new moral norms.

10.1 A Working Conception of Moral Objectivity Before I can answer the two questions just set out, I need to present at least a rough working conception of moral objectivity. To work my way toward it, I will start by considering, in light of the two desiderata for an account of objectivity just set out, the relationship between mind-​dependence and moral objectivity. At two key places, my account of the introduction of new moral norms depends explicitly upon individuals’ moral attitudes: The input stage depends upon the counterparties arriving at a specification of the duty that one of them owes to the other that each of them sincerely and conscientiously finds acceptable in their situation; and the ratification stage depends upon most people finding the new moral norm acceptable upon reflection. Does this sort of explicit mind-​ dependence undercut the objectivity of the process? In answering this question, I will seek to characterize the mode of mind-​dependence that, like moral relativism, poses in-​principle difficulties regarding the existence of moral disagreement. Mind-​dependence as such does not necessarily pose any such problem. In some areas of philosophy, such as the analysis of color perception, it is common to associate mind-​dependence with subjectivity and mind-​independence with objectivity (see, e.g., Cutter 2016). As John Searle has tirelessly reminded us, however, the kinds of categories with which morality regularly deals, such as promises, reparations, friendships, and betrayals, are “institutional” concepts in a broad sense that implies that the existence of instances of the category in question depends on an interlocking set of intentional attitudes. “Money is money because the actual participants in the institution regard it as money” (Searle 2010, 17). To distinguish these mind-​dependent categories from those entities, such as color perceptions, that might be thought simply to reside in the mind, Searle suggests that we call the former “intentionality-​dependent” (Searle 2010, 17). Because morality pervasively deals with such categories, mind-​dependence of

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this type must be taken as a baseline of which all moral theories must take some account.4 More broadly, even if ethics bears even on alternative states of the universe from which persons are absent, as G. E. Moore asserted, much of ethics concerns what persons do, how their characters are, and how their lives go. The very subject matter of ethics thus centrally presupposes the existence of agents of a certain kind, with a certain range of possible character dispositions and a range of possible mental states that affect how their lives go. The nature of this subject matter arguably poses no more of a serious threat to the objectivity of ethical statements than does the parallel set of presuppositions in psychology or economics (Sosa 2001, 323). Similarly, because this is what ethics is about, it is to be expected that what is good and bad will depend to some extent on people’s subjective states (happiness and torment, pleasure and pain), and that what is right and wrong will depend to some extent on what people intentionally do, which in turn will depend on their states of mind, even if it is not straightforwardly determined by the intentions with which they acted (see Sosa 2001). That the content of ethics, in just about any view, thus makes direct or indirect reference to mental states does not begin to pose a serious threat to the kind of objectivity that concerns me here. As I have indicated, the kind of objectivity that concerns me here is one that grounds the twin, in-​principle possibilities of disagreement and of those who disagree coming to a reasonable resolution thereof. To secure these possibilities in general, neither of which is focused directly on the objectivity of persons as they address certain questions, but rather on the questions themselves, what is needed is a type of objectivity that Raz (2001a, 196) has called “domain objectivity.” For starters, we may say that a domain is objective only if statements within, or about the subject matter of, that domain, are possibly the objects of knowledge. Philip Pettit (2001, 234) has argued that domain objectivity for the ethical domain can be factored into three main claims or conditions, which I here adapt:5

4.  Admittedly, some moral theories, such as hedonistic utilitarianism, might simply lump such institutional facts with all other causal facts relevant to the causation of pleasure or pain. Hedonistic utilitarianism, though, elevates a mental state to the status of the highest good, and so avoids an innocuous form of mind-​dependence by accepting one that is more troubling (albeit troubling on substantive grounds, rather than on account of objectivity). 5. I rephrase the third condition. As Pettit (2001, 234) puts it, it is the claim that “though ethical justification may not dictate a unique verdict in every case, the verdicts it delivers are equally relevant for every person; they are based on neutral values that have the same significance for all.” The final, explanatory gloss seems unduly restrictive, as an objective ethics can make room for agent-​relative reasons and values. The main aspect of this claim, put in terms of equal relevance for each, sits uneasily with the directed rights and duties that I have emphasized. Surely,

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1. Truth-​aptness: Ethical judgments are robustly truth-​apt, rather than simply serving to express feelings or attitudes. 2. Some success in attaining truth: Some ethical judgments are true. 3. The availability of nonrelative justification: The justifying reasons conveyed by an ethical truth do not vary with the values, evaluative perspective, or Weltanschauung of the persons entertaining it. Let me comment briefly on each of these conditions. Robust truth-​aptness will secure the possibility of real disagreement, if anything can.6 By “robust,” I  have in mind a type of truth-​aptness that implies a framework—​here using that term merely as a placeholder—​that might “explain disagreement [rather than] merely record it” (Dreier 2009, 83). The existence of minimalist or deflationary accounts of truth, with no metaphysical commitments (e.g., Horwich 1990), makes it necessary to add this qualification. While simple forms of moral expressivism might be able to support deflationary truth-​aptness, it is doubtful that they can support robust truth-​aptness.7 These are deep metaethical waters. I am wading into them only reluctantly. My aim here is only to characterize a discourse’s virtue of objectivity—​a virtue that, I will argue, my account of moral innovation does not undercut. If securing the possibility of real disagreement were the only desideratum of this characterization, this first condition could be interpreted more broadly. Expressivists continue to exercise great ingenuity in attempting to explain how their noncognitivist view of morality can give an account of disagreement. Since, however, we are also looking to a conception of domain objectivity to explain how disagreements may be reasonably resolved, we cannot step wholly away from robustness to a fully deflationary account of truth. Again, if modeling disagreement were all that mattered about objectivity, it would be unnecessary to stipulate that there must be some success in attaining truth. Without adding this second condition, however, we would not have excluded a moral error theory such as J. L. Mackie’s (1977), which holds that all our moral beliefs involve an erroneous presupposition. We also would not have verdicts involving these might, as a conceptual matter, be as objective as one could wish, while remaining more relevant to the named parties than to others. 6. The idea of disagreement is elusive: see Dreier (2009). To be sure, disagreement might be taken as a primitive for the purposes of building up a metaethical account, as Allan Gibbard has sometimes suggested (2003, 74). I am not trying to build up a general metaethical account, but only to articulate a conception of objectivity that is importantly relevant to judging the success or failure of an account such as the one this book offers. 7. For an argument that they do not, see Dreier (2009, 83): “Expressivists think that nothing helpful can be said in the way of truth-​conditions for normative statements.”

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excluded a thoroughgoing moral skepticism, which would deny the possibility of moral knowledge. If we were doomed to pervasive error or a total lack of moral knowledge, however, then it seems unlikely that there could be any reasonable way to resolve any moral disagreements that arise. While the first condition requires a sufficiently robust framework to identify disagreements and the second implies that it must bear some fruit, the third holds that this framework must work in a way that does not vary with the commitments or attitudes of the specific people considering it. For instance, suppose that it is true that consciously harboring racist values is wrong. The reasons that this truth conveys to the racist imply that he or she should alter these values. It likewise provides nonracists with reasons to agree that racists should alter their values. This condition generalizes John Rawls’s claim that “[i]‌t is part of understanding the concept of objectivity that we never suppose that our thinking something is just or reasonable, or a group’s thinking it so, makes it so” (2005, 111). Because the desiderata orienting this conception of objectivity pertain to the reasonable resolution of disagreement, this condition does not stipulate that truth in the ethical domain is plain truth, as opposed to being truth from some perspective. When conjoined with the first two conditions, however, this third condition excludes most forms of moral relativism. The interpretation of domain objectivity in terms of these three conditions is in one respect stronger than needed to satisfy our two desiderata. It might be possible to make sense both of disagreement and of reasonable ways of resolving it without committing oneself to the robust truth-​aptness of the judgments in question. It is possible that other robust standards of correctness might do, instead. Rawls puts forward such a proposal as part of his political liberalism, taking the appropriate standard of a political doctrine to be correctness, not truth. Since minimalist, nonmetaphysical theories of truth are ready to hand, some philosophers will think this a silly proposal: Why is there any need to step away from the concept of truth? Yet Rawls seeks an account of objectivity, like ours, that can serve to explain how disagreements can reasonably be resolved. As we have just seen, robustness of the standard of correctness is important for this. What is problematic about the concept of truth, from Rawls’s point of view, is that it is the focus of philosophical controversy. Seeking to be deeply respectful of divergence in people’s moral and ethical views and commitments, he finds minimalist theories of truth, like any philosophical theory of truth, too controversial to be publicly accepted. He accordingly states that “[r]‌easonableness is . . . the standard of correctness” of his political constructivism: “given its political aims, it need not go beyond that” (Rawls 2005, 127). He understands a standard of correctness as being a necessary element of a conception of objectivity for a domain such as morality. The “first

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essential” of a conception of objectivity, he holds, is that it “establish a public framework of thought sufficient for the concept of judgment to apply and for conclusions to be reached on the basis of reasons and evidence after discussion and due reflection” (2005, 110). Rawls describes the necessity of having a standard of correctness as “a corollary of the first essential”: “It is definitive of judgment (moral or otherwise) that it aims at being reasonable, or true, as the case may be. Thus, a conception of objectivity must specify a concept of a correct judgment made from its point of view, and hence subject to its norms” (2005, 111). In having norms that contribute to a framework that provides an adequate backdrop against which reasoned discussion can unfold, this concept of correct judgment is clearly somewhat robust, whatever its relation to truth may be. If Rawls is correct to say that the idea of reasonableness—​ or simply correctness—​can substitute for that of truth in an account of domain objectivity, then the conditions of domain objectivity set out here could be amended to reflect this possibility. Since, however, I am pursuing a project in moral philosophy that in any case does not fit within the strictures of Rawlsian political liberalism, and since the supposedly broader idea of correctness, while not as much a target of philosophical controversy as the idea of truth, correspondingly also lacks established philosophical elucidation, I will leave the conditions undisturbed and proceed to address my two questions on their basis. Those who reject nonminimalist accounts of truth, however, could read these conditions in terms of something like the Rawlsian conception of correctness.

10.2 Objectivity in the Introduction of New Moral Norms The first question is whether the process of introducing new moral norms that I have defended itself precludes the objectivity of its results, despite the objectivity of the old moral norms that provide its backdrop. If the process did have this defect, that would not be because the participants were proceeding unreasonably. The conditions defining the process require that the counterparties generating candidate norms proceed sincerely and conscientiously, and that the process whereby social convergence on the new norm comes about can nontrivially be reconstructable, after the fact, as a course of reasoning. The question, rather, is whether this process’s constitutive reliance on the views of some of the participants blocks it from proceeding objectively. It may seem that it does, by implying a blatant violation of the maxim that objectivity is incompatible with holding that an individual’s or a group’s thinking that something is so makes it so. I will consider

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this question first from the perspective of the participants in the process, and then from an external perspective. The key point to remember about the perspective of the participants that they do not think of themselves as acting authoritatively. They cannot know that they are faced with an objective gap in morality; and, in any case, my conditions on the introduction of new moral norms stipulate that they must not believe that they are. Further, even if people came to believe the view put forward in this book, this would not reasonably support the thought, on any given occasion, that “in this case, I—​or we—​can settle on anything we want, as we’re making the rules here.” My account’s conditions imply that it would be self-​defeating to take this attitude. In addition, our ignorance of where the objective gaps may lie is so thorough that it seems highly unlikely that anyone would ever have compelling reason to believe that they were dealing with an objective gap in morality in a concrete case. Accordingly, the process simply calls on the participants to deliberate to the best of their ability within the framework provided by the existing valid norms of morality, which I have assumed to be objective. At the input stage, the counterparties must do so sincerely and conscientiously, and at the ratification stage, people must do so reflectively. Accordingly, nothing about the process that I have described encourages or even allows the participants to believe that their say-​so is determinative in any given case. Accordingly, from their perspective, nothing disturbs the objectivity that is available to them from the outset, given that they start from objectively valid moral norms. Looking at this process from an external perspective, it is of course true that individuals’ attitudes play determinative roles at various points. By assumption, though, what they are determining is not at odds with the objective framework with which they began. That is because that framework is given by the existing valid principles of morality, and their determinations pertain only to filling in gaps left by that framework. Still, if it were the case that, as seen from the outside, it is simply people’s say-​so or a collection of states of mind that settles how the gaps are filled in, that would suggest that the way that they are filled in lacks objectivity. It is not simply the say-​so of individuals or a group, however, that settles this. The conditions for the introduction of new moral norms describe a social process. Its key steps are that novel input get authorizedly introduced, that social practices converges on this novel content de facto, and that the novel content is reflectively ratified by the moral community. This process is mind-​dependent only in the broad way that the money and the legal system are mind-​dependent. In Searle’s terminology, it is intentionality-​dependent. Even adding in the role for intelligent individual discretion allowed by the participant conception of rules introduced in §3.5 does not interfere with such

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systems from operating objectively—​that is, in ways that work within and elaborate a framework that makes disagreements and their reasonable resolution possible. The condition requiring that the convergence stage be reconstructable after the fact as a process of reasoning helps assure that the process is one that makes adequate room for disagreement as it unfolds. The same is true of the requirement that, at the input stage, the counterparties, if both morally competent and it is not inapt, must work out with one another how to interpret the relevant duty. Accordingly, seeing the process from an external perspective provides no grounds for concluding that it is likely to undercut objectivity. Objectivity, of course, is but one virtue of such a process. I will come, later in this chapter, to the question of how the process might be tainted by existing injustice, which in turn might undercut objectivity. There is also the question of whether it may lead to moral error. If there are higher-​order, ultimate truth-​ conditions of morality that authorize the moral community to fill in the gaps in morality in the way suggested, then such error would be impossible; but I have simply pointed out the possibility of such ultimate truth-​conditions so as to explain how my view can be reconciled with rationalist moral realism—​I have not argued for them. My current concern, however, is not with truth, but with objectivity. Having argued that the process of introducing new moral norms does not itself undercut objectivity, I turn to whether its result—​that of the introduction of new moral norms—​has this effect, starting with a forward-​looking examination of the path-​dependence that it entails.

10.3 Path-​Dependence If my account of the moral community’s interstitial authority to introduce new moral norms is correct, then, going forward, two implications are clear. First, the set of valid moral norms can continue to evolve as new ones get added. Thus, future people will be bound by a set of moral norms that, while it overlaps considerably with the set of moral norms binding us, is not identical to it. Second, given the discretion that my account emphasizes in individuals’ conscientious efforts at the input stage, to any actual course of moral evolution that introduces a new moral norm there corresponds any number of alternative courses of moral evolution that could have addressed the same range of practical problems in some other way. Accordingly, from our current vantage point, we face, in principle, a vastly complex array of branching possible future ways in which the set of valid moral norms might evolve.8 8. In Richardson (2013c), I discuss the difficulties that this branching structure poses to ideal-​ endpoint theories of moral truth.

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Which specific pathway the moral community ends up taking through this array over a given time period will surely be determined to a considerable extent by arbitrary and contingent factors. This last fact would offend a foundational moral rationalism were it not for the possibility of authority-​authorizing ultimate principles. Having laid that worry to rest in the last chapter, here what we need to examine are the implications of this branching for moral objectivity. The fact that this arises as a worry is due to the universality that moral norms purport to have. They purport to apply to all persons. Consider: the facts about the world’s possible future history also exhibit a vastly complex branching structure, but this in no way impugns the objectivity of history, such as it might be studied millennia from now. The idea that the history that actually unfolded was highly contingent does not in itself lessen the degree of objectivity that historical conclusions can attain.9 The reason that the possible branching evolution of moral norms seems to pose a problem of objectivity is that moral norms purport to have universal reach. Looking at this issue first in a forward-​looking way, the salient issue concerns what to say about the unrealized possibilities. We might, for instance, try to imagine what the people who exist in one moral future might say to those who existed in some alternative moral future to justify their own version of morality. One simple point to make is that although, as noted, these people would not be in position to tell a story that made explicit where they had exercised legitimate moral authority, their norms will have evolved in a relatively continuous way that would allow them to explain and make sense of how they became what they are. The two such stories of our imagined interlocutors would each involve diverging, nonmoral facts of their histories, for, as my account implies, their practices must evolve in order for their moral norms to do so. Noting these differing circumstantial facts and their cumulative effects would help each party understand how the other had ended up where they did. Amusing as imagining such conversations may be, however, the main point is that the desiderata set out here for an account of objectivity do not apply across alternative possible futures like this. They apply to people who might be able to disagree with one another and then, once facing a disagreement, seek reasonable ways to resolve them. Denizens of alternative possible futures cannot do this under any circumstances.10

9. I am not here taking a stand on the degree of objectivity that the study of history can attain. As with ethics, there are many aspects of mind-​dependence involved. The claim in this text is a comparative one. 10. The idea that these groups of people cannot meaningfully be thought of as succeeding or failing at resolving disagreements with one another does not at all imply that neither set of people could meaningfully consider what Bernard Williams calls a “notional confrontation” between their two contrasting “outlooks” if they had knowledge of them. See Williams (1985,

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The way that I have just described these alternative futures presupposes that the universality that moral norms purport to have does not extend its reach to persons in all morally possible worlds. The universality that is a conceptual feature of morality, as I  understand it, implies only that moral norms purport to apply to, or bind, all actual people. Philosophers who think otherwise, I suggest, are drawing on contentious metaphysical claims that go beyond this core conceptual feature. For instance, David Enoch, in elaborating his robust moral realism, takes the position that “there is no metaphysically possible world where the basic norms are different” (2011b, 146). Accordingly, he holds, “the (basic) moral and other normative norms . . . are norms of maximal, even modally maximal jurisdiction” (Enoch 2011b, 145). Further elucidating his conception of a “basic norm” (2011b, 146n.), he comments: There may be some problems in making the idea of a basic or an ultimate norm fully explicit. But the idea is, I take it, intuitive enough—​we just backtrack, so to speak, practical syllogisms to their major premise until we reach such a major premise that is not itself the conclusion of a practical syllogism, or that is (roughly speaking) free of empirical content. Using the terminology of Scanlon’s definition of moral relativism, to assume that the ultimate step in backtracking to an ultimate or basic norm is accomplished via a practical syllogism is to assume that the ultimate ground for moral judgments must take the form of a standard rather than, say, a ground that involves a disjunction over alternative morally possible worlds, such as a partitioning principle. As we saw in §9.2, one can concede that all moral judgments may have ultimate grounds without committing oneself to the view that the ultimate moral grounds must be moral norms that are fact-​insensitive, and thus of modally maximal jurisdiction. Instead of considering conceivable but impossible conversations between denizens of alternative future worlds, we might consider what we now could possibly say about the alternative legitimate moral futures. Here, the answer simply is that we can and must debate their comparative moral merits, at least to the extent that doing so is practically relevant. Given my assumptions, the existing moral framework cannot settle our debates, but there is never any worry about exhausting the moral considerations that can be brought forward in argument.

160–​163), where he writes that denying the possibility of notional confrontation the defining mark of that he there calls “the relativism of distance.”

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Having pathways for coming to reasonable resolutions of such debates does not require either that the problem resolve itself or that the resolution be uniquely correct. If we made a great effort at imagining these branching futures, we could imagine morally possible futures that were quite unlike ours. That might make it hard for us to say anything definite about their relative merits. Again, however, since our working through any disagreements that we might have with the denizens of these future possible worlds is blocked by the laws of nature, this difficulty should not give us too much pause. Furthermore, being unsure what to say about such a distant world might evince a different sort of theoretical virtue—​that of the kind of modesty about the reach of our claims that arose in §9.2 in connection with Pogge’s critique of Cohen’s argument that all ultimate moral principle must be fact-​insensitive. We might sensibly be committed to fact-​sensitive principles and reasonably be unsure as to the appropriateness of applying them to distant possible worlds. The fact that my account implies that there are many different morally legitimate futures, then, does not of itself undercut the objectivity of the norms arrived at. Yet problems may be thought to arise between us and people in the past if we assume that some introduction of new moral norms has occurred since their time. They, after all, were actual people. How does the introduction of new moral norms affect moral judgments about them?

10.4 Retrospective Moral Judgment I now turn to the backward-​looking implications of the suggestion that new moral norms can be authoritatively introduced. Questions about retrospective moral judgment raise some awkward issues about my view that need to be addressed in any case. Since some of these issues seem related to objectivity, I will address them here. While the topic of retrospective moral judgment has been taken up from various theoretical points of view, few of these discussions touch on the issues arising from the potential introduction of new moral norms. For example, the U.S. Advisory Committee on Human Radiation Experiments investigated a series of deceptive and abusive U.S. government experiments that exposed human subjects to radioactive materials between 1944 and 1974. Allen Buchanan, a philosopher who served on the staff of the committee, noted that its members were sensitive about passing moral judgment on investigators operating in an earlier era. He argued, however, that the relevant moral principles (such as nonmaleficence) are not culturally or historically relative. The serious difficulty in

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judging the wrongdoing of those who conducted them, he argued, had to do, not with judging the wrongness of the actions, but with imputing blame. Inculpable ignorance, especially when culturally induced, might provide an excuse in some cases—​though only a few cases, in his estimation—​which was well informed by the committee’s detailed study of these abuses (Buchanan 1996). A contrasting account of retrospective moral judgment is given by Bernard Williams, who asks whether major transitions in political morality, such as the transition in the West from absolute monarchies to liberal republics, can possibly be given a vindicatory explanation. By this, he means an explanation, provided by the later outlook, such that the adherents both of the later outlook and of the earlier one “have reason to recognize the transition as an improvement” (Williams 2000, 486–​487). In any case involving a deep divergence such as the one just mentioned, he argued, a vindicatory explanation is out of reach. “In the absence of vindicatory explanations,” Williams suggests (488): while you can of course say that they were wrong—​who is to stop you?—​ the content of this is likely to be pretty thin: it conveys only the message that the earlier outlook fails by arguments the point of which is that such outlooks should fail by them. It is a good question whether a tune as thin as this is worth whistling at all. A pretty pickle! Explaining the conditions of culpable ignorance and charting a pathway between Williams’s two unpalatable alternative attitudes toward those of our forebears which we consider to be deeply mistaken are each well-​explored philosophical problems. These problems, however, are not relevant here. Mine is not an account of progress from moral ignorance and error toward knowledge and truth, and hence it does not face the questions about possibly excusing cases of the former or vindicating claims of movement toward the latter. Indeed, my problem regarding retrospective judgment does not arise from divergent moral outlooks or belief systems; rather, it arises from divergence in the set of valid moral principles binding on the people in question. If my account is correct and applies in any instance, it implies that the later people are bound by more—​or more specific—​moral principles than the earlier people were. Buchanan sidles up to this possibility, noting that “moral standards can evolve” and citing the case of the emergence of the informed-​consent standard in medical research as having usefully specified an older, less stringent consent requirement. He stops short of recognizing this as a new moral norm, however, describing the fact that this requirement arose merely as an institutional and regulatory one (Buchanan 1996, 29).

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Suppose, though, that building on the convergent practice facilitated by these institutional and regulatory facts, the informed-​consent norm were reflectively ratified by the moral community and thus became a new moral norm.11 And further suppose that this happened between the time that U.S.  government employees injected unwitting research subjects with radioactive substances and the time that the committee did its work. What, then, should those on the committee say about these actions? Since these suppositions imply that there was a moment of reflective acceptance of the informed-​consent norm shortly before the committee was formed, and since its members were experts on the ethics of research, we may not unrealistically suppose that they take researchers to be morally—​and not just institutionally or legally—​required to seek the informed consent of prospective study participants. This supposition further implies that they would be disposed to judge the scientists who carried out these experiments to have acted wrongly by not having done so. It does not imply, however, that the committee members know that this moral norm is a new one. The moment of reflective acceptance is one of becoming mutually aware of a norm implicit in a shared practice that has arisen in a rationally defensible way. This could also happen with a norm that had always been part of morality’s objective core. If the committee members take it as a moral norm that was validly binding when the study was carried out, it would be reasonable for them to judge the researchers as having acted wrongly by violating it. If instead, for whatever reason, they suspect that it became a validly binding moral norm only after the experiments were concluded, it would be reasonable for them not to judge that the researchers acted wrongly. It might be thought that their refraining to judge that the research was wrongly conducted in this respect would violate the universality of moral judgments; but it is not so. The universality conceptually tied to morality, as characterized in §I.1, entails only that moral norms are insensitive to the particular identities of persons. It does not entail insensitivity to relevant differences in circumstances.12 And the occurrence of a broad social process that involves widespread shifts in practices and broad collective reflection might well make the relevant circumstances different. So far, then, issues about retrospective judgment, delicate though they are, do not seem to raise any difficulty about the objectivity of the norms in question. Yet there is one further layer to examine. It may be accepted that, under the 11. Whether this has actually happened or is likely to happen is hard to say. At the theoretical level, there has been a thoughtful backlash against the informed-​consent requirement (as standardly interpreted). See, e.g., Sreenivasan (2003) and Wertheimer (2011, chap. 3). 12. I am grateful to Gabriel Broughton for stressing the importance of this point.

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counterfactual suppositions given, it is reasonable for the committee to judge the scientists as having acted wrongly by not seeking informed consent; but is this judgment true? In looking at my view’s implications about such moral truths, we may yet uncover problems with objectivity. Let us start by focusing only on the implications of the fact that a new moral norm has been introduced—​in this example, sometime between the post–​World War II period and the 1990s. Assuming, as I have been, that moral principles play an important role in determining which actions are right and which are wrong, there is a ring of truth to the claim that one has acted wrongly only if one has acted in a way forbidden by a norm validly in place at the time of action; yet there is also some wiggle room. Various philosophical positions about this would be defensible, arising from different interpretations of “wrong” in relation to systems of norms, from different views about the relationship between wrongness and the aptness of blame, and from the distinction I have drawn between the question of which norms of morality are validly binding and the question of what the ultimate truth-​conditions of moral judgments may be. Substantively, however, there is a strong case for holding that a person acts morally wrongly by virtue of a set of moral principles13 only when the person violates a nonoverridden principle that is binding on the person at the time of action. This position parallels the element of the rule of law that prohibits ex post facto legislation. The case to be made for this stance in the law is somewhat different, as the justification of this principle there is largely pragmatic. The civil law, in particular, is a structure whose purpose is in large part to enable people to coordinate and execute their plans, so that these can unfold over time in the secure knowledge that the rules of the game will not be changed without warning. Yet the account that I gave in §3.3 and §3.4 of the role of directed duties in coordinating social action by assigning morally urgent tasks to specific agents indicates that this pragmatic concern is not irrelevant to morality. Furthermore, in both contexts, there seems something fundamentally unfair about holding someone to have acted wrongly even though the moral norm on the basis of which this judgment is supported was not valid when the person acted. Perhaps, if links to the fittingness of blame were cut, that would ease the sting of this position. This would imply that what was being said would be that the action was wrong, but that, considering that the norm was not validly binding when it was performed, it is not blameworthy. Such a maneuver, however, seems

13. This qualification is intended to allow the possibility that an action might be wrong for reasons not capturable by principles. Although my account has not been friendly to particularism, I do not think that the falsity of particularism can be derived from the concepts of “right” or “wrong.”

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ad hoc. The simplest and most compelling position is that it is a mistake to judge that the action was wrong because it violated subsequently introduced norms. I will adopt this conclusion for the purposes of this discussion. Before we can get to what my view implies about what we should say about the past actions from the point of view of stipulated omniscience, we need to fold in the presupposition of my account that a new moral norm can legitimately arise only when there had been an indeterminacy in morality.14 As I indicated in §I.3, these gaps are of two sorts: (1) cases where no valid moral norm applies, perhaps because the topic is new; and (2) cases of moral dilemmas. The former kind of gap will arise only if morality does not contain an axiom to the effect that any action that is not prohibited by a valid moral norm is morally permitted. The main reason to resist such an axiom—​that is, to doubt that it obtains in a morality that operates via validly binding principles—​is cognate with the reasons that we have to be modest about the range of alternative possible worlds to which our moral principles apply. These reasons were discussed in §9.2. A similar argument suggests that any principles simple enough for human beings to take up in deliberation might have to be hedged in their range of application. If they are so hedged, that opens the possibility that significant changes in circumstance generate cases in which the existing norms have no clear application. In §I.3, I  gave an example involving the treatment of intelligent robots. Illustrating the point while sticking with the informed-​consent example requires more of an imaginative stretch, but we might imagine that the rise of organized medical research presented such a novel situation that it was outside the scope of any older principle pertaining to consent. If this were the situation, there would be different ways of modeling it. One possibility is that the preexisting moral norms would support no assignment of truth-​values to whether obtaining informed consent from research subjects was morally required—​and perhaps not to whether it was morally forbidden or permitted, either.15 Case (2) is more straightforward. A moral dilemma implies that neither (or none) of the available alternatives is morally permissible. In the radiation experiment case, we could imagine a moral dilemma arising from an unresolved conflict between a principle requiring the protection of potential subjects from harm and

14. I am grateful to an anonymous referee for Oxford University Press for having urged me to confront this issue. 15. Cheryl Misak (2000, 68–​69) has interpreted C. S. Peirce as seeing bivalence as a hope—​a regulative ideal of inquiry—​rather than as an axiom or assertion. I can see the attractions of such a view. Note, however, that in this text, I am talking about what truth-​assignments follow from the set of moral norms validly in place, not about the ultimate truth-​conditions of morality, whatever these may be.

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a principle requiring that their liberty to engage in free transactions not be paternalistically restricted by anything like a requirement to obtain a heavy-​duty kind of consent.16 This would mean that it would be wrong to make obtaining informed consent a prerequisite of trial participation—​and wrong not to. If these are the only two ways in which moral indeterminacies of the relevant kind can arise, then my view implies that, in relation to the set of moral norms validly in place in the earlier period, one of two possibilities holds as to whether it was wrong not to have obtained informed consent: Either the question lacked a determinate answer, or it was wrong, but so was the alternative. Given our suppositions, I would have to say about the former possibility that when these experiments were carried out, it was not true that it was morally wrong to perform them without first obtaining each participant’s informed consent, but that it is now true that it is wrong to do this. On the latter alternative, I must say that it was not true when these experiments were carried out that it was morally wrong to condition trial participation on obtaining each participant’s informed consent, but it is now true that it is not wrong to impose this condition. This sort of variation over time is, perhaps, what you may have expected would follow from the idea of introducing new moral norms. It may seem awkward, but by holding in abeyance any discussion of morality’s ultimate truth-​conditions, whatever they may be, and remaining at the level of what is supported by the set of validly binding moral norms, I hope that I have indicated why these implications are acceptable. Previously, I  have argued that the process whereby new moral norms get established does not undercut their objectivity. If we accept this point, and accept that the wrongness of an action is based on the moral norms binding at the time of the action, why should we be disturbed by the fact that the content of morality’s requirements changes over time? In any case, as to whether this variation undercuts objectivity, my answer is the same as it was in the case of the multiple morally possible futures. The laws of nature block our attempting to resolve disagreements with people living in 1944—​so, back in the world of that time—​just as they block our attempting to resolve disagreements with people living in one of the many morally possible future worlds. Such efforts at resolution being nomologically impossible implies that the question about whether a normative framework of any kind can facilitate or enable such resolutions does not meaningfully arise. Accordingly, the question

16. The latter is the type of consideration brought forward by Wertheimer (2011). Of course, the questions of what should be done in the context of radiation experiments and what should be done in medical research across the board are different. For illustrative purposes, I am simply assuming that there might have been a dilemma in this case.

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of objectivity, as I have interpreted it for the purposes of this chapter, does not arise here.

10.5 Taint by Actual Injustice and Corruption I close this discussion of how it is that new moral norms can meet the conditions of objectivity set out in this chapter by considering how the contingent social process whereby they arise might corrupt the upshot.17 We live in a world in which major past injustices go uncorrected, systematic structural injustices live on, discrimination and disrespect are woefully common, dire needs get neglected, and venality and self-​dealing thrive. I suspect that most of these problems are at least exacerbated by mistaken moral beliefs. This includes both cases in which people fail to recognize moral principles that are part of morality’s objective core, such as the fundamental moral equality of all people, and cases in which people mistakenly believe principles to be well grounded when they are in fact not, such as principles of patriarchy. If so, that hardly mitigates the problem. To the contrary, widespread moral error is a further, higher-​order problem that compounds the difficulty. My response to this difficulty is twofold. I  will first state it in conclusory fashion and then elaborate on the answers. The first point is that, as I have already had the occasion to remind the reader earlier in this chapter, the conditions that the account lays down on the three-​stage process whereby new norms get established require that people proceed sincerely and conscientiously in the input stage (­chapter 3); proceed toward convergence in ways that can be plausibly reconstructed after the fact (­chapter 7) as a process of social reasoning in which the voices of all those affected have been heard, insofar as that is reasonably possible (­chapter 6); and culminate in broad and inclusive, reflective acceptance by members of the moral community (­chapter 7). If these various conditions were met, that would at least help keep some of the worst of the world’s vices from infecting the result. The second point is that, at any rate, the process cannot go very far wrong. That is because, on my account, the introduction of a new moral norm can happen only where an indeterminacy in objective morality had existed. Ways that unjust systems elaborate themselves over time so as to maintain their dominance will generally not work in such territory since their very mode of being constitutes an injustice. Any social specification of a norm that landed outside the preexisting

17. I am grateful to an anonymous referee for Oxford University Press for having raised this objection.

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zone of moral indeterminacy would be ruled out of bounds by the account’s limit on the scope of potential moral authority. I will take these two points in reverse order. The second point is not intended to calm the worries or dull the motivation of anyone engaged in practical efforts at moral reform. My aim is not to offer a practical recipe for generating legitimate moral innovations; rather, it is to provide a coherent and attractive way of seeing moral principles and moral theory that reconciles objectivity with a role for the moral community’s reflective input. Accordingly, the fact—​which I have been tirelessly repeating—​that we do not know where the boundaries of moral indeterminacy lie does not disturb me. They lie where they lie; and the legitimate introduction of new moral principles, on my account, cannot stray outside them. This stipulative point does not fully answer the concerns that might arise in relation to the second point, however, for I  have also assumed these zones of moral indeterminacy leave open a range of legitimate resolutions. Surely the hegemonic forces that stand behind and are reinforced by existing systemic injustice will hijack any process of deliberation so as to bend the process in the direction of the resolution most favorable to them. Sometimes this tendency will yield a norm that, falling outside the zone of objective indeterminacy, is illicit, but sometimes not. This is certainly a realistic possibility. While the conditions that I  have mentioned in my first point might mitigate this danger, they cannot remove it. How much of a danger this is, however, depends upon whether objective morality antecently contains principles that address nonideal conditions. Suppose that morality contained a principle along the lines of the following:  Where systemic injustice exists, it is wrong to support or implement changes in social practice that perpetuate or exacerbate that injustice. If this, or something like it, is a valid principle of morality, it would make it likely that instituting a new moral principle that served the interests of the perpetrators of injustice or aided the perpetuation of an unjust system could not lie within the zone of moral indeterminacy. This principle would tend to rule that out. Still, there remains the possibility that the forces of injustice would exert their influence on where within the (unknown) zone of indeterminacy exercises of moral discretion land. The fact that we cannot entirely rule out this possibility means that we must remind ourselves of a point made abstractly in §I.3. There, I noted that the mere fact that a new norm has been added to the objective norms of morality does not necessarily make morality better. Although, per the conditions of my account, this change cannot go against what the prior objective norms determinately dictate, it can fail to optimally serve various morally important values. In the

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Introduction, the example of a competing value was personal freedom; here, the example is social justice. It is not sensible to demand optimality of any actual, embodied process of authoritative change. Hence, it seems reasonable to suppose that nonoptimal moral principles could become authoritatively established by the moral community. If one of them should prove markedly morally problematic in its results, however, it seems likely that occasions would arise for its future authoritative revision or rejection. For instance, if a new norm ended up exacerbating systemic injustice, it would clash with any nonideal principle similar to the one mentioned in the last paragraph, potentially opening room for a further round of authoritative specification to correct for its defects. In addition, as I mentioned in §I.3, we might speculate that there are pathways other than the one that this book has defended, whereby the set of valid moral norms might get authoritatively revised—​pathways that would allow revision by abstraction, which would simply reverse a previous authoritative specification. About the first point, which calls on all the procedural conditions put in place by the account, there is less to say. They will surely have some usefulness in disqualifying potential candidate moral norms on account of the way that coercion, self-​dealing, irrationality, or the silencing of voices have played a significant role in the process by which those norms came to shape social practice. By the same token, in our morally defective world, these limiting conditions on moral authority will reduce the numbers of occasions on which moral innovation of the kind defended here can actually take place. Yet, as I noted in ­chapter 7, my account does not depend on the claim that it happens with any frequency; it argues that these conditions, though demanding, do not make introducing new moral norms impossible. Here, I can add that if widespread injustice or corruption does drastically cut down on the number of occasions on which the moral community can authoritatively specify new moral norms, that can be chalked up as yet another cost—​and far from the most serious one—​of those moral blights. In sum, understanding the objectivity of a set of moral principles as entailing that they provide a basis for identifying and reasonably resolving disagreements, I have argued that the moral community’s having the authority to put in place new moral norms in the conditions that I  have described does not undercut or erode the objectivity that, as I  have assumed, the initial norms of morality enjoy. The new moral norms can be introduced in a way that is compatible with objectivity. While the possibility of their introduction creates philosophical conundrums as we look forward to branching moral futures or back to a past time prior to their introduction, these issues do not implicate objectivity because the possibility of resolving disagreements cannot meaningfully arise for people

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who are not contemporaries in a given possible world. Our actual world is sadly full of moral problems. These, as we have just seen, may make it more difficult for indeterminacy-​reducing moral innovations to arise; but, by the same token, the conditions built into the three-​stage process are sufficiently demanding that they will hold the world’s contingent moral defects largely at bay, enabling such innovation to proceed objectively.

CONCLUSION

This book set out to establish that the moral community can authoritatively adopt new moral norms. To conclude, I will begin by reviewing how this has been shown and noting other significant conclusions reached along the way. In addition, now that the case has been made for the moral community’s moral authority, it is time to return to the constructive ethical pragmatism (CEP) set out and defended in ­chapter 1 and to consider how well this account of moral authority supports it. It is also time to question a number of assumptions that this account adopted so as to narrow our focus to the most plausible basis for any such moral authority. We can now consider whether some of these restrictive assumptions might be dropped. After surveying these possibilities, I will close with some reflections on the significance of the argument.

C.1 Results of the Argument Although this book’s argument unfolded in a fairly straightforward order, there was sufficient stage-​setting and clarification along the way that it is worth recapitulating its main steps and its intermediate conclusions. As I will reconstruct it here, the argument began with my defense in ­chapter 3 of the Specificatory Theory of dyadic rights and duties. Then in ­chapter 4, I addressed on that basis Thompson’s challenge about how all persons can be united into one normative community so as to make up a moral community worthy of the name (per the standards of ­chapter  2). Finally, again drawing on the Specificatory Theory, I laid out the three-​stage account of how the moral community can exercise moral authority (­chapters  3, 5, and 7). The Specificatory Theory is of some independent interest. Its claim is the following:

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The Specificatory Theory of dyadic moral rights and duties: For individuals A and B, A has a moral duty to B to φ and, equivalently, B has a moral right against A that A φ, just in case (i) B has a monadic moral right that implies in the circumstances that A has a moral duty to φ and (ii) on account of (i), A has a moral power to specify A’s moral duty that A φ. As I argued in c­ hapter 3, this theory does better at explaining dyadic moral rights and duties than do the other leading theories of rights. Since, as I argued in ­chapter 2, there is no reason to speak of dyadic rights or duties except in cases in which someone’s right is ontologically correlative with another person’s duty, explaining dyadic rights and duties—​as opposed to explaining them away—​ requires explaining this ontological correlativity. That requires identifying a type of fact that grounds both the right and its correlative duty. Neither the Interest Theory, championed by Joseph Raz and others, nor the Kind-​Desire theory, put forward by Leif Wenar, attempts to do this. Their theories—​and especially Wenar’s—​do suggest ways of bringing order to our understanding of a broad range of rights, extending, unlike the Specificatory Theory, well beyond morality. About that broader range, I would myself be content with a more eclectic or pluralistic understanding of what can ground rights. I find the more truly puzzling phenomenon to be that of the strong correlativity of rights and duties. This both the Will Theory and the Specificatory Theory claim to explain; but while these two theories are similar in their justificatory strategies, the Specificatory Theory is less prone to troublesome counterexamples. In stating and defending the Specificatory Theory as a theory only of moral rights, I have left open whether it would also serve as a good theory of dyadic rights and duties in other normative domains, such as the law. Now that the book’s full course of argument is complete, you can perhaps see why. In many places, I have noted how the account of specificatory moral authority that I have defended differs from a merely conventionalist account of authority. My account begins with objective moral norms and finds room for objective specification of new moral norms only where the objective moral norms give rise to practical indeterminacies. The moral powers to specify one’s duties that lie at the core of the Specificatory Theory are powers that derive from the duty-​holder having been given a special moral responsibility as an equal moral person. The fundamental axiom of moral equality underwrites seeing all persons as having the relationship to morality postulated by the participant conception of rules, in which each person, equally, is called upon, insofar as they are able, to approach their moral responsibilities intelligently, and so with an openness to reconsidering their formulation or point.

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In the case of democratic legal systems, by contrast, although in some sense the people are the lawmakers, this sense is a sublimated one that has to be compatible with recognizing that only the elected legislators have the power to enact new laws. Formally institutionalized systems of democratic governance depend on a background of coercive enforcement that clashes with morality in its full generality. Such systems reinforce Rawls’s dichotomous distinction between making the rules and following the rules—​the very alternatives that the participant conception of rules intentionally steers between. This being so, it seems quite possible to me that such formally institutionalized systems might easily be conventionally set up to deny their members equal powers as intelligent persons, instead concentrating the rule-​or law-​making powers in a few hands. Yet they might go on to establish ontological correlativity by fiat, perhaps by using language such as the following: “In every place where this law holds that any person A has a right that some person B φ them, we declare that the law is to be understood as implying that this person B has a correlative duty to φ A.” Accordingly, I leave to another occasion, or to other hands, pursuit of the question whether the Specificatory Theory well applies outside of morality. This book’s second significant result was showing that the Specificatory Theory furnishes a satisfactory answer to Thompson’s challenge by explaining what unites all persons into one community—​namely, the moral community. Recall that, as §2.1 insisted, the moral community, like any community, must be more than a mere set of individuals. There must be some significant relationship among them that goes beyond the mere fact that each of them has some nonrelationally defined capacity. As I there argued, the moral community should be understood as being the open-​ended set of all individual persons who can wrong or can be wronged by one another. The relevant relationship should therefore support the possibility of one member wronging or being wronged by another. Since the idea of being wronged by someone is a dyadic one, that sends us looking for what would put all people into such dyadic moral relationships with one another. The Specificatory Theory shows how this can work in a bottom-​up and open-​ ended fashion, one that responds to contingent changes in which moral responsibilities for promoting or protecting monadic rights get specifically addressed to certain individuals. And it also responds, of course, to how individuals charged with such responsibilities sincerely and conscientiously interpret or specify their duties. Since this process leaves specificatory authority in the hands of each morally competent individual, rather than centralizing in the hands of legislators, actual or virtual, it evades the difficulties arising from seeing each purported “moral community” as having a particular conventional or ideal-​ legislative provenance. Where rules have distinct conventional provenances,

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uniting the normative communities that they define into one is a difficult matter. As I understand it here, by contrast, the moral community—​and there is only one such—​does not have a conventional basis. The Specificatory Theory does emphasize the importance of social practices and institutions, but it casts them not as giving rise to conventional norms (although they may), but as serving to specifically address monadic duties to specific individuals. By working from such a social basis, the Specificatory Theory is better placed to account for the unity of the moral community than are approaches that work from a foundation in individual human nature (Aristotle, per Thompson 2004b) or individual rational nature (Kant). The account thus afforded implies that this unity is open-​ended—​that is, capable of dyadically joining together hitherto-​isolated groups of intelligent beings. Accounting for the unity of the moral community is not necessary only in order to have a proper understanding of the moral community, but also for understanding how the moral community could possibly exercise authority. Not being unified via centralized administrative and legal mechanisms, like a nation-​ state, it must be unified in some other way in order to be able to adopt new moral norms. By enabling us to account adequately for the unity of the moral community, the Specificatory Theory helps us understand how the moral community is unified in a way that allows it to exercise moral authority. What unifies it is the constant work of intelligent beings charged with special moral responsibilities to reweave the web of dyadic moral relations that holds it together. The three-​stage account of moral authority sets out how this reweaving can give rise to new moral norms. Sincere and conscientious efforts at specifying a norm can give rise to a new candidate moral norm—​which is “new” because it makes a difference to someone’s rights and duties and because it is not derivable from the extant moral norms. A further condition is that this candidate moral norm must not go against any of the extant norms, instead filling in an indeterminacy that those norms leave open. As I have emphasized, those specifying a norm cannot know, and must not believe, that they are filling in an indeterminacy—​ though they need not believe, falsely, that they are not filling in an indeterminacy. The second and third stages—​those of convergence and ratification—​work in tandem. The convergence stage involves the candidate norm becoming, de facto, a global social norm via legitimate—​so, inclusive and noncoercive—​processes. The ratification stage complements this de facto convergence with the moral community’s reflective acceptance of this norm. The conditions of ratification set out in ­chapter 7 may be informally summarized as requiring: (i) broad and inclusive, and broadly and inclusively recognized, reflective acceptance of the norm in question as a moral norm,

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(ii) which acceptance has been informed by broadly and inclusively available critical reflection and (iii) has arisen at least in significant part because of a similarly broad and inclusive acceptance that the norm was a reasonable response to a moral problem and (iv) has been informed by successful and reasonably sound efforts at reconstructing the process of the norm’s becoming a global social norm as a process of reasoning about how to fulfill morality’s requirements or how to carry out morally urgent tasks. Fulfilling these conditions is a tall order, and it may be that some of them are more restrictively stated than necessary. It must be remembered, though, that the book is arguing that the moral community can exercise its authority to fill in gaps in morality, not that it does so frequently. Several examples have been offered of cases where it seems likely that it has done so in the past, including that of the widespread and seemingly global acceptance of the norm of keeping one’s promises. I conclude that the three-​stage account has given us sufficient reason to think that the moral community can authoritatively put in place new moral norms and considerable reason to suspect that it has done so in the past.

C.2 Implications for Constructive Ethical Pragmatism As c­ hapter  1 explained, one motivation for exploring the question of whether the moral community can authoritatively specify moral norm is provided by the fact that CEP, an otherwise attractive moral theory or type of moral theory, presupposes that it can. Rather than defining the right as a function of goodness, as consequentialist theories do, or understanding the constraints of right as being fixed independent of goodness, as deontological theories do, CEP is a nonreductively integrative moral theory. In §1.1, I  provisionally defined it as follows: Constructive ethical pragmatism is, roughly, the view that (a) which actions are right in a given circumstance is a function of the valid moral norms legitimately in place, where which ones are legitimately in place is partly a result of the moral community’s tacit reflective efforts to work out a well-​ integrated and coherent understanding of the right and the good; and (b) where the valid moral norms legitimately in place generate a practical indeterminacy, which actions are right may further be determined by additional efforts in that direction.

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The book’s vindication of this possibility thus clears away an important threshold objection to this sort of theory—​namely, that the revisions contemplated by clause (a) are illicit or impossible. Further, the input stage provides a defensible example—​and a much more precise description—​of how further efforts at working out a better integrated and more coherent understanding of the right and the good may make a difference to which actions are right and which wrong in a given circumstance. The example of Alduin and Schalduin in §4.1 was a case of this kind.1 In addition, there are three specific aspects of the account of the moral community’s moral authority given here that indirectly support CEP: the central role of practical intelligence in ­chapter 3’s defense of the Specificatory Theory, the account of moral psychology put forward in ­chapter 8, and the account of the objectivity of authoritatively introduced moral norms given in c­ hapter 10. The idea that this mutually supportive relationship should exist is no surprise, given the shared authorship; but it may be useful for me to spell out the nature of this indirect support. The grounding idea of the Specificatory Theory of dyadic rights and duties is that rights specifically addressed to individuals are addressed to them as intelligent beings, capable of rethinking and reinterpreting goods and constraints in light of each other. This idea takes the place of the grounding idea of the Will Theory, the idea that each individual is a small-​scale sovereign. A further elaboration of the former grounding idea is provided by the participant conception of rules (§3.5)—​namely, of a system of rules in which, while the roles of rule-​makers and rule-​followers are distinguishable in thought, they are not sharply distinguishable in practice since those individuals subject to the rules are also expected to approach their rule-​defined tasks as intelligent beings able to rethink the rules. CEP is a type of moral theory that results from applying the participant conception of rules to morality as such. The Aristotelian account of moral psychology sketched in §8.3 provides a way to understand moral reasoning that reinforces this participant conception of rules and explains how individuals can rationally operate within it. That chapter argued for reviving an understanding of our practical deliberations by reference

1. This case, like all cases in the input stage, involves alterations in the specification of dyadic rights and duties of one or another individual. Although these directly affect when one of them would be wronging the other, there is a further step from there to monadic conclusions about which actions are right or wrong for that individual to do. A general “decounter” rule, which would logically take one from “A has a (dyadic) duty to B to φ” to “A has a (monadic) duty to φ,” is defended in Makinson (1986, 444) as a “natural” one to support; but the issue is controversial at that level of generality. Still, we may expect that changes in individuals’ dyadic moral rights and duties will often make a difference to what they morally ought to do.

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to what is sought for the sake of what. Avoiding a simple dichotomy between ends and means, it allows, with common sense, that something sought for its own sake may rationally also (perhaps in a different context) be sought for the sake of something else. Final ends, sought for their own sake, thus also can be elements in a chain in which each element is sought for the sake of another. We further observe some common tendency for this chaining to be antisymmetrical: when A is sought for the sake of B, it is often the case that B is not sought for the sake of A.2 The chapter’s analysis of what it is to seek one thing for the sake of another, and, where A = B, of final ends, was the following: One pursues A for the sake of B just in case: (1) one would pursue A even setting aside all that were thereby to be gained except B; (2) one judges, implicitly or explicitly, that it is appropriate to regulate how one develops and selects one’s plans to pursue A by reference to B; and (3) one believes that pursuing A is a way of pursuing B. For present purposes, it is the first two clauses that matter. Clause (1) implies a type of choiceworthiness that is central to the idea of goodness. Clause (2), by contrast, states a regulatory requirement that can be operationalized by reference to what someone would not do. This kind of saying “no” is distinctive, rather, of constraints of right. This Aristotelian psychology well captures the common deliberations in which we engage.3 It provides a way for us to recognize systematic structure in someone’s deliberations that does not simply reduce either to rationally pursuing what is taken to be good or to following constraints of right—​or, indeed, to doing the first in a way constrained by the second. It further gives us a way to understand our deliberative psychology as integrating elements of both the good and the right within each agent’s conception of what is worth pursuing. The upshot is quite commonsensical, and yet it thus resists a sharp dualism between the right and the good. More specifically, and to the present point: This moral psychology makes it easy to understand how agents—​and persons—​may revise their

2.  Sarah Moss’s counterexample to G.  A. Cohen’s claim about fact-​sensitive principles, discussed in §9.2, features an exception to this tendency. 3. A full defense of this claim would require showing that the analysis of what it is to pursue one thing for another is not an unstable portmanteau construction, wedding two elements that do not belong together. In my view, Aristotle’s conception of desire provides a basis for seeing the unity of this idea. For a summary, see Richardson (2012a, 223–​230). For a basis of this sort of understanding in Aristotle’s texts, see Richardson (1992b).

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understandings of the right and of the good in light of each other. In revising their view of what to pursue for the sake of what, they will naturally be doing both of those things at once. Accordingly, this moral psychology well supports the kind of reasoning that CEP makes central to moral theory. While this discussion of moral psychology has focused on individuals’ subjective understandings, the possibility that the moral community can authoritatively put in place new, objective moral norms, defended in c­ hapter 10, implies that the kind of revision of the good and the right in light of each other that CEP envisages need not be limited to subjective or relativistic results. Of course, no practical measures can ensure that our moral thinking is free of distorting biases; but if our moral thinking can begin from objective moral norms, reconsider the content of a duty in light of reflection on the underlying morally important good or goods that it serves to protect or promote, and proceed via the three-​stage process, then it can result in new, objective moral norms. Admittedly, the story that this book has told has been entirely focused on the revision of deontic principles and has neither analyzed the idea of the good nor been concerned with the revision of the good.4 In that regard, this book has not provided anything like a full or balanced defense of CEP. Indeed, for this reason, the book’s central conclusions about the moral community’s moral authority do not entail the truth of CEP, which also insists that the good may be revised in light of the right. The conclusion that the moral community can validly revise the right in light of the good with objective effect, however, provides crucial support for CEP, as do the supporting accounts of practical intelligence and the moral psychology of deliberation.

C.3 Broadening the Argument’s Reach The question of whether the moral community has any authority to introduce new moral norms with objective effect is sufficiently novel that I have been hard pressed to locate firm standards of success. In arguing that it is possible for the moral community to do this, I have accordingly sought to err on the side of securely establishing the possibility claim. By stating conditions that may be more demanding than necessary, I  hope to have avoided failing to convince anyone of this possibility. Now that we have reached the conclusion of the account and I have convinced whoever I have convinced, we can look back to consider

4. For an argument that value (or goodness) can vary over time as new social practices arise, without entailing relativism about value, see Raz (2003).

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whether such moral authority can arise under weaker conditions than the ones I have stated. I will consider just two such possibilities. In order to reflect the importance of consistency with the initial set of objective moral norms, my account has assumed throughout that candidate innovations, and so ratified ones, must be limited to new norms that specify preexisting ones. In §5.4, I argued that this does not mean the these newly specified norms cannot meaningfully count as “new norms”; but some readers may have hoped or expected that the moral community had the authority to do something more radical—​namely, to reject old moral norms and to replace some of them with norms that do not count as specifications of any of them. In raising this issue now, I would like to keep in place the Introduction’s distinction between changes in our moral beliefs and understandings and changes in which intelligible moral norms are validly in place. In §I.1, I offered this latter language as a way of talking about which moral norms or principles are true or correct or binding on all of us without having to talk directly about the ultimate truth-​makers of moral claims. In these terms, the issue being raised is whether authoritative changes to the set of intelligible norms validly in place are necessarily limited to specificatory changes occasioned by indeterminacies. When two valid moral norms generate a moral dilemma, might it not be possible for the moral community reflectively to reject one of those norms? It is difficult to address this question without succumbing to the temptation of thinking of at least one of the conflicting norms as being defective in some way. For instance, we might think of a dilemma arising between the duty of beneficence and respect for people’s core privacy rights. Helping someone avoid some dire outcome might call for breaking into her or his home and snooping through private records, suggesting that we should reject the absolute right of privacy protection. But who is to say that the absolute right of privacy protection was ever valid (i.e., correct and binding on all of us) in the first place? In my examples in the body of the book, I simply assumed that there were objectively valid norms that set limits on the authorization to revise; but I did so without purporting to state these limits, which I take to be generally unknown to us. Since, however, there is independent reason to expect indeterminacies to arise from clashes among such norms, secured space opens up in which authority might operate. If one wanted to go beyond that, to consider the possibility of authoritatively rejecting a norm that may be assumed to be valid, one takes on the burden of identifying such a norm. Otherwise, it will simply seem likely that the rejectable norms were not fully correct anyway. A more promising, yet more arduous, route to dropping the restriction of working within the preexisting objective moral norms would be to refuse to allow that any general moral norms can be objectively valid in a sense that implies their

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correctness. One way to implement this refusal would be to merge CEP with moral particularism of the kind defended by Dancy (2004). Perhaps the ultimate truth-​makers of ethical statements are too complex to be captured either by principles or by orderings of goodness; instead, both principles and conceptions of the good could be thought of as authoritative aids that help us get by when our trained skills do not suffice to guide us. To hold onto the idea of moral authority embodied in moral principles and conceptions of morally important goods in such a picture, we might defend it, not along the lines pursued in the body of this book, but in the style of Raz’s “normal justification thesis” (1986, chap. 3)—​namely, as an authority that gives rise to practical aids that help us better satisfy the ultimate moral reasons that otherwise apply to us than we would in their absence. If such an implementation of CEP could be coherently set out, the resulting view could be metaphysically unified. It would take very seriously the revisability of both principles and conceptions of the good, emphasizing Raz’s point that “there is no point in having authorities unless their determinations are binding even if mistaken” (1986, 47). Principles could be revised on the basis of considerations of goodness and vice versa. Pragmatism’s rejection of that dualism would be fully realized. The cost, though, I  fear, would be to ethical pragmatism’s constructive aspect: its ability to support the development of theories—​partial ones developed in medias res—​that help us work out more concretely what we ought to do. Seeing principles and conceptions of the good as mere heuristics is not a recipe for taking them seriously, at least philosophically. Notably, this book’s account implies the falsity of Raz’s claim about the point of authority. The point of authority of the kind defended here is to constitute new moral norms where morality is otherwise indeterminate. This moral authority, when it is exercised, cannot be mistaken. To be fair, when Raz speaks of “having authorities,” he means to be referring to our choices to create entities, such as governments, that wield authority. Do we choose to create the moral community? If the story sketched in §§3.3 and 3.4 is on the right track, the moral community may have initially arisen from choices about how specifically to address certain basic rights to certain individuals. Its existence may, accordingly, be a contingent achievement, albeit not a result of intentional choice. Whether that is so or not, its continuing extension to individuals that are not morally competent may require choices by its current members. This issue of the extension of the moral community brings me (as promised in §3.8) to a second potential broadening of the account—​namely, to cases beyond the paradigmatic case involving input initially worked out together by two morally competent parties. In this regard, the narrowness of the account did not result from any official assumption; rather, I simply confined myself in the body of the

2 7 0   • C o n c l u s i o n

exposition to cases involving two parties working things out together. My stated motivation in doing so was to set aside certain worries about the illegitimacy of moral authority that would arise were the input to flow from a duty-​holder’s unilateral—​if sincere and conscientious—​discretion. These worries would arise most forcefully in cases involving holders of duties deriving from another morally competent individual’s right being specifically addressed to them. As I mentioned in §3.1, there can be substantive moral reasons why it is inapt or undesirable to ask the duty-​holder and the right-​holder to work things out together, as in the case where someone has a duty to leave another alone on account of that other’s right to privacy. There are also cases in which the duty-​holder’s self-​ interest would be likely to taint the result. For example, suppose that Devin has spread a vicious lie about Riley, and that this wrong gives rise to a duty that Devin make up for this wrong by mitigating the damage done. Fully compensating Riley in this way might call for Devin to go to each person lied to, confess the lie, and neutralize it. Since the prospect of doing so will not be attractive to Devin, we may expect that if given full discretion, Devin would judge some less thorough and less painful step morally adequate. The account as I have developed it, however, has four layers of checks built into it that will militate against any morally unreasonable result becoming enshrined as a new moral norm. The first one is stipulative and derives from the limitations provided by the antecedent, objectively valid moral norms: Where there is room for authorized specification, there can be no morally unacceptable outcome. Still, we might worry that outcomes of authorized unilateral specification by duty-​ holders would tend to pull as closely as possible to the end of the indeterminate range most favoring themselves (if not, indeed, to go beyond the limit of authorized discretion). It matters, then, that there are other, procedural checks in place against this. To begin with, there is the condition of sincerity and conscientiousness that bears on the duty-​holder’s effort at specification. This condition might be leaned on, or amplified, in order to block self-​serving specifications and limit the duty-​holder to considerations sincerely regarded as morally relevant. Next comes the process of convergence. In a case such as that of Devin and Riley, we might well expect the victims to push back against minimalist modes of compensation, hence blocking any such specification from becoming a social norm. Finally, there is the process of ratification, in which it must be broadly and inclusively accepted that the specification offered at the input stage was a reasonable response to the moral problem faced. Given all these conditions in place to block unduly self-​serving specifications by duty-​holders giving rise to new moral norms, it seems that when we confine our attention to cases concerning two morally competent individuals, it may not be necessary to limit the account to cases in which the two parties work things out together.

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What about cases in which the right-​holder is not a morally competent individual? Of the constraints just listed, all still apply except for the de facto constraint of the convergence stage. The constraints on moral authority deriving from the objectively valid moral norms, the requirement of sincerity and conscientiousness, and the condition of broad and inclusive acceptance of reasonableness remain relevant. The convergence process in, say, a debate about the rights of nonhuman animals is likely to be biased toward specifications that keep as close as possible to the end of the indeterminate range (as it were) most favoring humans. It will further be true that since only morally competent persons can participate in the ratification process, the judgment of reasonableness will likely be biased as well. Yet if we deny that moral authority can be exercised in nonparadigm cases in which the right-​holders are not morally competent, we may be blocking the possibility of extending the moral community to include these right-​holders, at least if that process must occur in the way described in §4.3. We should look more closely, then, at why such a biasing of results within a range of objective moral indeterminacy might be morally troublesome. It seems that there are two kinds of reasons why it might be problematic. First, the bias might be a sign of something morally problematic about the specification arrived at. If that is the case, however, it seems that it is not really within the range of moral indeterminacy; rather, it seems that what might have seemed to be a moral indeterminacy disappears when fuller account is taken of all the relevant moral considerations. Second, the bias might be morally problematic as a procedural matter. If that is the case, then we should examine the nature of the procedural fault. Either the fault is already something prohibited by the input, convergence, and ratification conditions that I have put forward or it is not. If it is, then the account is not troubled by the case and will not recognize its product as a valid instance of moral authority. If, however, the fault is not yet included in those conditions, there would be a case for strengthening those conditions to block such morally troubling sorts of bias from influencing authoritative specifications of moral norms. Either way, then, it seems possible to extend the account to nonparadigm cases involving right-​holders that are not morally competent. Either the account will serve as it is, or else its extension to these cases can occur by strengthening its conditions.

C.4 The Significance of These Conclusions Although there is some philosophical attractiveness to the idea of dropping this book’s restriction of the moral community’s moral authority to the zones of indeterminacy arising from the objective and intelligible moral norms validly in place, there is strong reason to maintain it. If we maintain it—​whether for

2 7 2   • C o n c l u s i o n

the sake of argument or wholeheartedly, as an assertion—​the resulting account shows us how to reconcile the objectivity of morality with the possibility that the reflection of intelligent persons can, over the course of history, fill out the content of morality. It allows us coherently to say that while some moral principles may be eternal and immutable, other moral principles are not, but instead derive from historically contingent developments. Further, it allows us to explain why, although contingently put in place, the newly established moral norms remain objective in the sense that matters most (as argued in §10.2): that is, they secure a basis for real disagreement and for reasonably and rationally working out disagreements—​a basis, further, that has been adjusted legitimately. Accordingly, the account enables us to describe coherently how morality can take on contingent content deriving from human history without thereby committing ourselves to moral relativism or historicism. The contingent moral norms authoritatively arrived at are not mere supplements to morality, such as ordinary social conventions might be. Rather, they are valid moral principles that are not derivative either from the noncontingent ones—​if any—​or from the other preexisting valid moral norms. The way in which the new moral norms yield more complete moral guidance without contradicting the preexisting ones enables us to reconcile the compelling thought that surely, we have had a hand in shaping morality and will continue to do so with the equally compelling thought that morality is not worth much, and carries a false promise, if its prescriptions are not both objective and equally binding on all persons. The key to this reconciliation was to understand how, compatible with morality’s universal membership and the incoherence of seeing it as being structured throughout on the basis of institutions that cannot exist without coercive backing, the moral community could find any authoritative voice. The solution to this problem of voice defended here has been to make the universal membership of the moral community work for it rather than against it, and to take the fundamental axiom of the moral equality of all persons as implying that each person equally has a voice. By further taking on board the thought that, in embodying this axiom of equality, the moral community addresses duties to individuals as intelligent beings, we could understand how the moral power to specify moral norms arises. We were then able to see the moral community’s voice as having its origin in the myriad conscientious judgments, in particular circumstances, of its many members. When any of the provisional norms thus arrived at become the object of globally convergent social practice, the moral community is latently in a position to express a new judgment. Via the ratification process, which reflectively accepts this latent agreement, this judgment is expressed, and a new moral

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norm is authoritatively adopted. Whereas, in the law, we freely adopt arbitrary symbolisms, such as seals and ceremonial forms of words, as the means whereby normative powers are to be exercised, the moral power of the moral community, which does not rest on a conventional basis, has only those conditions of exercise that derive from the universality of this community and the equality of its members. The initial authoritative input to this process starts small and local, arising from special responsibilities specifically addressed to certain individuals. Via these special responsibilities, as well as the division of moral labor that they embody, with distinct rights becoming the responsibilities of distinct groups of people, the moral community becomes articulated in the engineer’s sense. The holders of these special responsibilities will make the first move, putting, as it were, their moral foot forward. When convergence and ratification ensue, then the body of morality will follow. And when that happens, the moral community finds its voice, enabling it to act as an expressively articulate community.

REFERENCES

Allais, Maurice. 1979. “The Foundations of a Positive Theory of Choice Involving Risk and a Criticism of the Postulates and Axioms of the American School,” in Expected Utility Hypotheses and the Allais Paradox, ed. M. Allais and O. Hagen. Dordrecht, the Netherlands: D. Reidel, 27–​147. Allen, Anita L. 2011. Unwanted Privacy:  What Must We Hide? Oxford:  Oxford University Press. Anderson, Elizabeth S. 1993. Value in Ethics and Economics. Cambridge, MA: Harvard University Press. Anderson, Elizabeth S. 2014. “Social Movements, Experiments in Living, and Moral Progress:  Case Studies from Britain’s Abolition of Slavery.” Lindley Lecture, the University of Kansas, 2014; available at https://​kuscholarworks.ku.edu/​bitstream/​ handle/​1808/​14787/​Anderson_​Social_​Movements.pdf, accessed July 20, 2017. Anderson, Elizabeth S., and Richard H. Pildes. 2000. “Expressive Theories of Law: A General Restatement,” University of Pennsylvania Law Review 148: 1503–​1575. Angell, Marcia. 1997. “The Ethics of Clinical Research in the Third World,” New England Journal of Medicine 337: 847–​849. Applbaum, Arthur. 1998. “Are Violations of Rights Ever Right?” Ethics 108: 340–​366. Aquinas, Thomas. 1948. Summa Theologica, trans. by Fathers of the English Dominican Province. Westminster, MD: Christian Classics. Aristotle. 1929. Historia Animalium, vol. I. Translated by A. L. Peck. Cambridge, MA: Harvard University Press. Aristotle. 1984. The Complete Works of Aristotle: The Revised Oxford Translation, Vol. 2. Edited by Jonathan Barnes. Princeton, NJ: Princeton University Press. Arpaly, Nomy, and Timothy Schroeder. 2014. In Praise of Desire. Oxford:  Oxford University Press. Bagnoli, Carla. 2007. “Respect and Membership in the Moral Community,” Ethical Theory and Moral Practice 10: 113–​128.

2 7 6   • 

References

Beauchamp, Tom L. 2011. “Rights Theory and Animal Rights,” in The Oxford Handbook of Animal Ethics, ed. Tom L. Beauchamp and R. G. Frey. Oxford: Oxford University Press, 190–​227. Beauchamp, Tom L., and R. G. Frey (eds.). 2011. The Oxford Handbook of Animal Ethics. Oxford: Oxford University Press. Biasetti, Pierfrancesco. 2015. “Infinite Regress and Hohfeld,” Ethics 126: 139–​152. Bicchieri, Christina, and Alex Chavez. 2010. “Behaving as Expected: Public Information and Fairness Norms,” Journal of Behavioral Decision Making 23: 161–​178. Binmore, Ken. 2008. “Do Conventions Need to Be Common Knowledge?” Topoi 27: 17–​27. Botti, Daniele. 2014. “John Rawls, Peirce’s Notion of Truth, and White’s Holistic Pragmatism: Notes on a Recent Finding among Rawls’s Unpublished Papers and Personal Library,” History of Political Thought 35: 345–​377. Brandom, Robert. 1994. Making It Explicit:  Reasoning, Representing, and Discursive Commitment. Cambridge, MA: Harvard University Press. Brandt, Richard B. 1979. A Theory of the Good and the Right. Oxford:  Oxford University Press. Bratman, Michael. 1987. Intention, Plans, and Practical Reason. Cambridge, MA: Harvard University Press. Brewer, Talbot. 2003. “Two Kinds of Commitment (And Two Kinds of Social Groups),” Philosophy and Phenomenological Research 66: 554–​583. Brink, David O., et al. 2014. “Symposium: Experiment and Intuition in Ethics,” Ethics 124: 659–​881. Broadie, Sarah. 1991. Ethics with Aristotle. New York: Oxford University Press. Broome, John. 1991. Weighing Goods: Equality, Uncertainty, and Time. Oxford: Basil Blackwell. Broome, John. 1999. “Normative Requirements,” Ratio, 12: 398–​419. Broome, John. 2004. “Reasons,” in Reason and Value, ed. R. Jay Wallace, Philip Pettit, Samuel Scheffler, and Michael Smith. Oxford: Oxford University Press, 28–​55. Broome, John. 2009. “The Unity of Reasoning?” in Spheres of Reason, ed. Simon Robertson. Oxford: Oxford University Press, 62–​92. Broome, John. 2013. Rationality Through Reasoning. Chichester, UK: Wiley Blackwell. Buchanan, Allen. 1996. “Judging the Past:  The Case of the Human Radiation Experiments,” Hastings Center Report 26, no. 3: 25–​30. Chang, Ruth. 1998. “Comparison and the Justification of Choice,” University of Pennsylvania Law Review 146: 1569–​1598. Chang, Ruth. 2002. “The Possibility of Parity,” Ethics 112 (2002): 659–​688. Chappell, Timothy (Sophie Grace). 2004. “The Polymorphy of Practical Reason,” in Human Values: New Essays on Ethics and Natural Law, ed. David S. Oderberg and Timothy Chappell. Houndmills, Basingstoke, UK: Palgrave, 102–​126. Cicero. 1975. De Officiis. Translated by Walter Miller. Cambridge, MA:  Harvard University Press.

References  • 

277

Cohen, G. A. 2008. Rescuing Justice and Equality. Cambridge, MA: Harvard University Press. Confucius. 2000. Analects. Edited by Raymond Dawson. Oxford: Oxford University Press. Cooke, Maeve. 1994. Language and Reason:  A Study of Habermas’s Pragmatics. Cambridge, MA: MIT Press. Copp, David. 1995. Morality, Normativity, and Society. New York: Oxford University Press. Cutter, Brian. 2016. “Color and Shape:  A Plea for Equal Treatment,” Philosopher’s Imprint 16, no. 8: 1–​11. Dancy, Jonathan. 1993. Moral Reasons. Oxford: Blackwell. Dancy, Jonathan. 2004. Ethics Without Principles. Oxford: Oxford University Press. Dancy, Jonathan. 2013. “Moral Particularism,” in The Stanford Encyclopedia of Philosophy, Fall Edition, ed. Edward N. Zalta; available at https://​plato.stanford. edu/​archives/​fall2013/​entries/​moral-​particularism/​. Darwall, Stephen. 2006. The Second-person Standpoint:  Morality, Respect, and Accountability. Cambridge, MA: Harvard University Press. Darwall, Stephen. 2012. “Bipolar Obligation,” in Oxford Studies in Metaethics, Vol. VII, ed. Russ Shafer-​Landau. Oxford: Oxford University Press, 333–​367. Davidson, Donald. 1973–​1974. “On the Very Idea of a Conceptual Scheme,” Proceedings and Addresses of the American Philosophical Association 47: 5–​20. DeGrazia, David. 2008. “Moral Status as a Matter of Degree?” Southern Journal of Philosophy 46: 181–​198. Dennett, Daniel. 1984. Elbow Room:  The Varieties of Free Will Worth Wanting. Cambridge, MA: MIT Press. Dewey, John. 1939. Theory of Valuation. Chicago: University of Chicago Press. Dewey, John. 1993 (orig. 1917). “The Need for a Recovery of Philosophy,” in The Political Writings, ed. Debra Morris and Ian Shapiro. Indianapolis: Hackett, 1–​19. Donagan, Alan. 1979. The Theory of Morality. Chicago: University of Chicago Press. Dougherty, Tom. 2013. “Sex, Lies, and Consent,” Ethics 123: 717–​744. Draper, Heather. 2013. “Grandparents’ Entitlements and Obligations,” Bioethics 27: 309–​316. Dreier, James. 1993. “Structures of Normative Theories,” Monist 76: 22–​4 0. Dreier, James. 2009. “Relativism (and Expressivism) and the Problem of Disagreement,” Philosophical Perspectives, 23, Ethics: 79–​110. Dreier, James. 2011. “In Defense of Consequentializing,” in Oxford Studies in Normative Ethics, Vol. 1, ed. M. Timmons. Oxford: Oxford University Press, 97–​119. Dworkin, Ronald. 1984. “Rights as Trumps,” in Theories of Rights, ed. Jeremy Waldron. Oxford: Oxford University Press, 153–​167. Earl, Jacob C. 2017. “What We Owe to Those We Make:  A Causalist Account of Procreators’ Parental Obligations,” PhD dissertation, Georgetown University, Washington, DC.

2 7 8   • 

References

Ebels-​Duggan, Kyla. 2009. “Moral Community: Escaping the Ethical State of Nature,” Philosopher’s Imprint 9, no. 8: 1–​9. Engstrom, Stephen. 2009. The Form of Practical Knowledge: A Study of the Categorical Imperative. Cambridge, MA: Harvard University Press. Enoch, David. 2006. “Agency, Shmagency: Why Normativity Won’t Come from What is Constitutive of Action,” Philosophical Review 115: 169–​198. Enoch, David. 2011a. “Shmagency Revisited,” in New Waves in Metaethics, ed. Michael Brady. New York: Palgrave Macmillan, 208–​233. Enoch, David. 2011b. Taking Morality Seriously:  A Defense of Robust Realism. Oxford: Oxford University Press. Estlund, David. 2008. Democratic Authority:  A Philosophical Framework. Princeton, NJ: Princeton University Press. Feinberg, Joel. 1970. “The Nature and Value of Rights,” Journal of Value Inquiry 4: 243–​257. Ferrero, Luca. 2009. “Constitutivism and the Inescapability of Agency,” in Oxford Studies in Metaethics, Vol. 4, ed. Russ Shafer-​Landau. Oxford: Oxford University Press, 303–​334. Fontane, Theodor. 2001. Effi Briest. Munich: Ullstein Taschenbuchverlag. Foot, Philippa. 1967. “The Problem of Abortion and the Doctrine of Double Effect,” Oxford Review 5: 5–​15. Foot, Philippa. 1983. “Moral Realism and Moral Dilemma,” Journal of Philosophy 80: 379–​398. Forst, Rainer. 2012. The Right to Justification:  Elements of a Constructivist Theory of Justice. New York: Columbia University Press. Forst, Rainer, and Klaus Günther (eds.). 2011. Die Herausbildung normativer Ordnungen: Interdisziplinäre Perspektiven. Frankfurt: Campus. Fricker, Miranda. 2007. Epistemic Injustice:  Power and the Ethics of Knowing. New York: Oxford University Press. Gert, Bernard. 2005. Morality: Its Nature and Justification, rev. ed. New York: Oxford University Press. Gert, Bernard. 2012. “The Definition of Morality,” in The Stanford Encyclopedia of Philosophy (Fall Edition), ed. Edward N. Zalta, available at http://​plato.stanford. edu/​archives/​fall2012/​entries/​morality-​definition/​. Gibbard, Alan. 2003. Thinking How to Live. Cambridge, MA: Harvard University Press. Gilbert, Margaret. 1989. On Social Facts. Princeton, NJ: Princeton University Press. Habermas, Jürgen. 1990. Moral Consciousness and Communicative Action. Translated by Christian Lenhardt and Shierry Weber Nicolsen. Cambridge, MA: MIT Press. Habermas, Jürgen. 1993. Justification and Application:  Remarks on Discourse Ethics. Translated by C. Cronin. Cambridge, MA: Polity Press. Habermas, Jürgen. 1996. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Translated by William Rehg. Cambridge, MA: MIT Press. Habermas, Jürgen. 2003. Truth and Justification. Edited and translated by Barbara Fultner. Cambridge, MA: MIT Press.

References  • 

279

Halstead, John. 2016. “The Numbers Always Count,” Ethics 126: 789–​802. Harding, Sandra (ed.). 2004. The Feminist Standpoint Theory Reader. New York and London: Routledge. Hare, R. M. 1981. Moral Thinking:  Its Levels, Method, and Point. Oxford:  Oxford University Press. Harman, Elizabeth. 2009. “Harming as Causing Harm,” in Harming Future Persons: Ethics, Genetics, and the Nonidentity Problem, ed. Melinda Roberts and David Wasserman. Dordrecht, the Netherlands: Springer, 137–​154. Harman, Gilbert. 1986. Change in View:  Principles of Reasoning. Cambridge, MA: MIT Press. Harman, Gilbert, Kelby Mason, and Walter Sinnott-​ Armstrong. 2010. “Moral Reasoning,” in The Moral Psychology Handbook, ed. John M. Doris. Oxford: Oxford University Press, 206–​245. Harsanyi, John D. 1982. “Morality and the Theory of Rational Behaviour,” in Utilitarianism and Beyond, ed. Amartya Sen and Bernard Williams. Cambridge: Cambridge University Press, 39–​62 (orig. Social Research 44 [1977]). Hart, H. L. A. 1982. Essays on Bentham. Oxford: Oxford University Press. Haslanger, Sally. 2014. “Social Meaning and Philosophical Method,” Proceedings and Addresses of the American Philosophical Association 88: 16–​37. Hayward, Tim. 2013. “On Prepositional Duties,” Ethics 123: 264–​291. Heath, Joseph. 2001. Communicative Action and Rational Choice. Cambridge, MA: MIT Press. Hedahl, Marcus. 2013a. “Owing it to Us,” PhD dissertation, Georgetown University, Washington, DC. Hedahl, Marcus. 2013b. “The Significance of a Duty’s Direction:  Claiming Priority Rather than Prioritizing Claims,” Journal of Ethics and Social Philosophy 7, no. 3, http://​www.jesp.org/​PDF/​Significance_​of_​a_​Duty.pdf. Herman, Barbara. 1993. “Leaving Deontology Behind,” in The Practice of Moral Judgment. Cambridge, MA: Harvard University Press, 208–​240. Herman, Barbara. 2007. “Contingency in Obligation,” in Moral Literacy. Cambridge, MA: Harvard University Press, 300–​331. Herman, Barbara. 2012. “Being Helped and Being Grateful:  Imperfect Duties, the Ethics of Possession, and the Unity of Morality,” Journal of Philosophy 109: 391–​4 41. Herman, Barbara. Work in progress. “The Moral Habitat.” Heuer, Kelly. 2013. “Underdetermination and the Will,” PhD dissertation, Georgetown University, Washington, DC. Hieronymi, Pamela. 2013. “The Use of Reasons in Thought (and the Use of Earmarks in Arguments),” Ethics 124: 114–​127. Hohfeld, Wesley Newcomb. 1978 (orig. 1919). Fundamental Legal Conceptions as Applied in Judicial Reasoning, ed. W. W. Cook, reprint edition. Westport, CT: Greenwood Press. Honneth, Axel. 1995. “Decentered Autonomy,” in The Fragmented World of the Social: Essays in Social and Political Philosophy. Albany: SUNY Press, 261–​271.

2 8 0   • 

References

Horty, John F. 2012. Reasons as Defaults. Oxford: Oxford University Press. Horwich, Paul. 1990. Truth. Oxford: Oxford University Press. Hume, David. 1978. A Treatise of Human Nature, 2nd ed. Edited by L. A. Selby-​Bigge. Oxford: Oxford University Press. Janssen, Jac. J. 1982. “Gift-​Giving in Ancient Egypt as an Economic Feature,” Journal of Egyptian Archaeology 68: 253–​258. Jaworska, Agnieszka, and Julie Tannenbaum. 2013. “The Grounds of Moral Status,” in The Stanford Encyclopedia of Philosophy (Summer Edition), ed. Edward N. Zalta, available at http://​plato.stanford.edu/​archives/​sum2013/​entries/​ grounds-​moral-​status/​. Jeffrey, Richard. 1983. The Logic of Decision, 2nd ed. Chicago:  University of Chicago Press. Kamm, F. M. 2002. “Rights,” in The Oxford Handbook of Jurisprudence and Philosophy of Law, ed. Jules Coleman and Scott Shapiro. Oxford:  Oxford University Press, 476–​513. Kamm, F. M. 2007. Intricate Ethics:  Rights, Responsibilities, and Permissible Harm. Oxford: Oxford University Press. Kant, Immanuel. 1983. “Perpetual Peace,” in Perpetual Peace and Other Writings, trans. Ted Humphrey. Indianapolis: Hackett, 107–​143. Kant, Immanuel. 1988 “An Answer to the Question:  What is Enlightenment?” in Perpetual Peace and Other Essays, trans. Ted Humphrey. Indianapolis:  Hackett Publishing, 41–​48. Kant, Immanuel. 1996. The Metaphysics of Morals. Edited and translated by Mary Gregor. Cambridge: Cambridge University Press. Kant, Immanuel. 1997. Lectures on Ethics. Edited and translated by P. Heath and J. B. Schneewind. Cambridge: Cambridge University Press. Kant, Immanuel. 1998a. Critique of Pure Reason. Edited and translated by Paul Guyer and Allen W. Wood. Cambridge: Cambridge University Press. Kant, Immanuel. 1998b. Groundwork of the Metaphysics of Morals. Translated by Mary Gregor. Cambridge: Cambridge University Press. Kant, Immanuel. 1998c. Religion Within the Boundaries of Mere Reason. Edited by Allen Wood and George di Giovanni. Cambridge: Cambridge University Press. Kant, Immanuel. 2015. Critique of Practical Reason, rev. ed. Translated by Mary Gregor. Cambridge: Cambridge University Press. Karnein, Anja J. 2015. “Can We Represent Future Generations?” in Institutions for Future Generations, ed. Axel Gosseries and Iñigo Gonzalez. Oxford:  Oxford University Press, 83–​97. Keeney, R. L., and Howard Raiffa. 1993 (orig. 1976). Decisions with Multiple Objectives: Preferences and Value Tradeoffs. New York: Cambridge University Press. Kittay, Eva Feder. 2005. “At the Margins of Moral Personhood,” Ethics 116: 100–​131. Kolodny, Niko, and R. Jay Wallace. 2003. “Promises and Practices Revisited,” Philosophy & Public Affairs 31: 119–​154.

References  • 

281

Korsgaard, Christine M. 1983. “Two Distinctions in Goodness,” Philosophical Review 92: 169–​195. Korsgaard, Christine M. 2008. The Constitution of Agency: Essays on Practical Reason and Moral Psychology. Oxford: Oxford University Press. Korsgaard, Christine M. 2009. Self-​ Constitution:  Agency, Identity, and Integrity. Oxford: Oxford University Press. Kramer, Matthew H. 1998. “Rights Without Trimmings,” in A Debate over Rights, ed. Matthew Kramer, N. E. Simmonds, and Hillel Steiner. Oxford: Oxford University Press, 7–​111. Kramer, Matthew H. 2010. “Refining the Interest Theory of Rights,” American Journal of Jurisprudence 55: 31–​39. Kukla, Rebecca. 2014. “Living with Pirates:  Common Morality and Embodied Practice,” Cambridge Quarterly of Health Care Ethics 23: 76–​86. Kumar, Rahul. 2009. “Wronging Future People:  A Contractualist Proposal,” in Intergenerational Justice, ed. Axel Gosseries and Lukas H. Meyer. Oxford: Oxford University Press, 251–​272. Laden, Antony Simon. 2012. Reasoning:  A Social Picture. Oxford:  Oxford University Press. Lazar, Seth. 2017. “Deontological Decision Theory and Agent-​Centered Options,” Ethics 127: 579–​609. Lewis, David. 1969. Convention:  A Philosophical Study. Cambridge, MA:  Harvard University Press. List, Christian. 2006. “The Discursive Dilemma and Public Reason,” Ethics 116: 362–​4 02. Luban, David. 1985. “Bargaining and Compromise: Recent Work on Negotiation and Informal Justice,” Philosophy & Public Affairs 14: 396–​416. Machiavelli, Niccolò. 1995. The Prince. Translated by David Wootton. Indianapolis: Hackett. MacIntyre, Alasdair. 2006. Ethics and Politics:  Selected Essays, Vol. 2. Cambridge: Cambridge University Press. Mackie, J. L. 1977. Ethics: Inventing Right and Wrong. New York: Penguin. MacKinnon, Catharine A. 1987. Feminism Unmodified:  Discourses on Life and Law. Cambridge, MA: Harvard University Press. Macklin, Ruth. 2004. Double Standards in Medical Research in Developing Countries. Cambridge: Cambridge University Press. Makinson, David. 1986. “On the Formal Representation of Rights Relations: Remarks on the Work of Stig Kanger and Lars Lindahl,” Journal of Philosophical Logic 15: 403–​425. Manela, Anthony. 2014. “Gratitude and the Correlativity of Obligations and Rights,” PhD dissertation, Georgetown University, Washington, DC. Marcus, Ruth Barcan. 1980. “Moral Dilemmas and Consistency,” Journal of Philosophy 77: 121–​136.

2 8 2   • 

References

Mauss, Marcel. 1954. The Gift: Forms and Functions of Exchange in Archaic Societies. Translated by Ian Cunnison. Glencoe, IL: Free Press. May, Kenneth O. 1952. “A Set of Independent, Necessary and Sufficient Conditions for Simple Majority Decision,” Econometrica 20: 680–​684. Mayo, Bernard. 1955. “Commitments and Reasons,” Mind 64, no. 255: 342–​360. McClennen, Edward. 1990. Rationality and Dynamic Choice:  Foundational Explorations. Cambridge: Cambridge University Press. Mill, John Stuart. 1988. Utilitarianism. Edited by George Sher. Indianapolis: Hackett. Millgram, Elijah. 1997. Practical Induction. Cambridge, MA: Harvard University Press. Mills, Charles W. 2005. “‘Ideal Theory’ as Ideology,” Hypatia 20: 165–​184. Misak, Cheryl. 2000. Truth, Politics, Morality:  Pragmatism and Deliberation. London: Routledge. Misak, Cheryl. 2008. “Experience, Narrative, and Ethical Deliberation,” Ethics 118: 614–​632. Moody-​Adams, Michele M. 1999. “The Idea of Moral Progress,” Metaphilosophy 30: 168–​185. Murphy, Mark C. 2001. Natural Law and Practical Rationality. Cambridge: Cambridge University Press. Nell, Onora. 1975. Acting on Principle: An Essay in Kantian Ethics. New York: Columbia University Press. Nelson, Benjamin. 1949. The Idea of Usury:  From Tribal Brotherhood to Universal Otherhood. Princeton, NJ: Princeton University Press. Norcross, Alistair. 1997. “Good and Bad Actions,” Philosophical Review 106: 1–​34. Nussbaum, Martha C. 1990. Love’s Knowledge:  Essays on Philosophy and Literature. New York: Oxford University Press. Nussbaum, Martha C. 2006. Frontiers of Justice:  Disability, Nationality, Species Membership. Cambridge, MA: Harvard University Press, 2006. Nussbaum, Martha C. 2010a. “The Capabilities of People with Cognitive Disabilities,” in Cognitive Disability and Its Challenge to Moral Philosophy, ed. Eva F. Kittay and Licia Carlson. Malden, MA: Wiley-​Blackwell, 75–​96. Nussbaum, Martha C. 2010b. “Equality and Love at the End of The Marriage of Figaro:  Forging Democratic Emotions,” Journal of Human Development and Capabilities 11: 397–​423. O’Neill, Onora. 2005. “The Dark Side of Human Rights,” International Affairs 81: 427–​439. Owens, David. 2006. “A Simple Theory of Promising,” Philosophical Review 115: 51–​77. Parfit, Derek. 1984. Reasons and Persons. Oxford: Oxford University Press. Pettit, Philip. 1997. Republicanism:  A Theory of Freedom and Government. Oxford: Oxford University Press. Pettit, Philip. 2001. “Embracing Objectivity in Ethics,” in Objectivity in Law and Morals, ed. Brian Leiter. Cambridge: Cambridge University Press, 234–​286.

References  • 

283

Pietroski, Paul M. 1993. “Prima Facie Obligations, Ceteris Paribus Laws in Moral Theory,” Ethics 103: 489–​515. Pinkard, Terry. 1994. Hegel’s Phenomenology:  The Sociality of Reason. Cambridge: Cambridge University Press. Pippin, Robert. 2000. “What Is the Question for Which Hegel’s Theory of Recognition is an Answer?” European Journal of Philosophy 8: 155–​172. Pogge, Thomas. 1992. “Cosmopolitanism and Sovereignty,” Ethics 103: 48–​75. Pogge, Thomas. 2002. World Poverty and Human Rights, 2nd ed. Cambridge, MA: Polity Press. Pogge, Thomas. 2008. “Cohen to the Rescue,” Ratio 21, no. 4: 454–​475. Portmore, Douglas W. 2011. Commonsense Consequentialism: Wherein Morality Meets Rationality. Oxford: Oxford University Press. Pufendorf, Samuel. 2009. Two Books of the Elements of Universal Jurisprudence. Indianapolis: Liberty Fund. Putnam, Hilary. 1973. “Meaning and Reference,” Journal of Philosophy 70: 699–​711. Quine, W. V. O. 1960. Word and Object. Cambridge, MA: MIT Press. Rabinowicz, Wlødek, and Toni Rǿnnow-​ Rasmussen. 2000. “A Distinction in Value:  Intrinsic and for Its Own Sake,” Proceedings of the Aristotelian Society, 100: 33–​51. Raiffa, Howard. 1970. Decision Analysis:  Introductory Lectures on Choices Under Uncertainty. Reading, MA: Addison-​Wesley. Raphael, D. D. (ed.). 1969. British Moralists, 2 vols. Oxford: Oxford University Press. Rawls, John. 1955. “Two Concepts of Rules,” Philosophical Review 64: 3–​32. Rawls, John. 1999a (orig. 1980). “Kantian Constructivism in Moral Theory,” in Collected Papers, ed. Samuel Freeman. Cambridge, MA: Harvard University Press, 303–​358. Rawls, John. 1999b. A Theory of Justice, rev. ed. Cambridge, MA: Harvard University Press. Rawls, John. 2000. Lectures on the History of Moral Philosophy. Cambridge, MA: Harvard University Press. Rawls, John. 2005. Political Liberalism, expanded ed. New  York:  Columbia University Press. Raz, Joseph. 1979. The Authority of Law. Oxford: Oxford University Press. Raz, Joseph. 1986. The Morality of Freedom. Oxford: Oxford University Press. Raz, Joseph. 1990. Practical Reason and Norms. Princeton, NJ:  Princeton University Press. Raz, Joseph. 1999. “Moral Change and Social Relativism,” in Engaging Reason: On the Theory of Value and Action. Oxford: Oxford University Press, 161–​181. Raz, Joseph. 2001a. “Notes on Value and Objectivity,” in Objectivity in Law and Morals, ed. Brian Leiter. Cambridge: Cambridge University Press, 194–​233. Raz, Joseph. 2001b. Value, Respect, and Attachment. Cambridge:  Cambridge University Press. Raz, Joseph. 2003. The Practice of Value. Oxford: Oxford University Press.

2 8 4   • 

References

Raz, Joseph. 2006. “The Problem of Authority:  Revisiting the Service Conception,” Minnesota Law Review 90: 1003–​1044. Richardson, Henry S. 1990a. “Measurement, Pleasure, and Practical Science in Plato’s Protagoras,” Journal of the History of Philosophy 28: 7–​32. Richardson, Henry S. 1990b. “Specifying Norms as a Way to Resolve Concrete Ethical Problems,” Philosophy & Public Affairs 19: 279–​310. Richardson, Henry S. 1991. “Commensurability as a Prerequisite of Rational Choice: An Examination of Sidgwick’s Position,” History of Philosophy Quarterly 8: 181–​198. Richardson, Henry S. 1992a. “Commensurability,” in Encyclopedia of Ethics, Vol. 1, 2nd ed., ed. L. C. Becker and C. B. Becker. New York: Routledge, 258–​262. Richardson, Henry S. 1992b. “Desire and the Good in De Anima,” in Essays on Aristotle’s “De Anima,” ed. Martha C. Nussbaum and Amélie O. Rorty. Oxford:  Oxford University Press, 381–​399. Richardson, Henry S. 1994. Practical Reasoning About Final Ends. Cambridge: Cambridge University Press. Richardson, Henry S. 1995. “Beyond Good and Right: Toward a Constructive Ethical Pragmatism,” Philosophy & Public Affairs 24: 108–​141. Richardson, Henry S. 1999. “Institutionally Divided Moral Responsibility,” Social Philosophy and Policy 16: 218–​249. Richardson, Henry S. 2000. “Specifying, Balancing, and Interpreting Bioethical Principles,” Journal of Medicine and Philosophy, 25: 285–​307. Richardson, Henry S. 2002. Democratic Autonomy: Public Reasoning about the Ends of Policy. New York: Oxford University Press. Richardson, Henry S. 2004a. “Satisficing:  Not Good Enough,” in Satisficing and Maximizing: Moral Theorists on Practical Reason, ed. Michael Byron. Cambridge: Cambridge University Press, 106–​130. Richardson, Henry S. 2004b. “Thinking About Conflicts of Desire,” in Practical Conflicts: New Philosophical Essays, ed. Peter Baumann and Monika Betzler. Cambridge: Cambridge University Press, 92–​117. Richardson, Henry S. 2010. “Public Opinion and Popular Will,” in Realizing Deliberative Democracy in Practice, ed. David Kahane, Daniel Weinstock, Dominique Leydet, and Melissa Williams. Vancouver: University of British Columbia Press, 177–​193. Richardson, Henry S. 2012a. “Mapping out Improvements in Justice: Comparing vs. Aiming,” Rutgers University Law Journal 43: 211–​241. Richardson, Henry S. 2012b. “Moral Entanglements: Ad Hoc Intimacies and Ancillary Duties of Care,” Journal of Moral Philosophy 9: 376–​4 09. Richardson, Henry S. 2012c. Moral Entanglements: The Ancillary-​Care Obligations of Medical Researchers. Oxford: Oxford University Press. Richardson, Henry S. 2013a. “Moral Reasoning,” in The Stanford Encyclopedia of Philosophy (Spring Edition), ed. Edward N. Zalta, available at http://​plato.stanford.edu/​archives/​spr2013/​entries/​reasoning-​moral/​.

References  • 

285

Richardson, Henry S. 2013b. “Practical Reasoning,” in International Encyclopedia of Ethics, ed. Hugh LaFollette. Oxford: Basil Blackwell. Richardson, Henry S. 2013c. “Revising Moral Norms:  Pragmatism and the Problem of Perspicuous Description,” in Constructivism in Ethics, ed. Carla Bagnoli. Cambridge: Cambridge University Press, 221–​242. Richardson, Henry S. 2015. “Democratic Autonomy and Democratic Authority,” in Transformations of Democracy: Crisis, Protest, and Legitimation, ed. Robin Celikates, Regine Kreide, and Tilo Wesche. London: Rowman and Littlefield, 235–​256. Richardson, Henry S., and James F. Bohman. 2009. “Liberalism, Deliberative Democracy, and ‘Reasons that All Can Accept,’” Journal of Political Philosophy 17: 253–​274. Ripstein, Arthur. 2000. “Three Duties to Rescue: Moral, Civil, and Criminal,” Law and Philosophy 19: 751–​779. Ripstein, Arthur. 2009. Force and Freedom:  Kant’s Legal and Political Philosophy. Cambridge, MA: Harvard University Press. Rosen, Gideon. 2010. “Metaphysical Dependence:  Grounding and Reduction,” in Modality: Metaphysics, Logic, and Epistemology, ed. Bob Hale and Aviv Hoffman. Oxford: Oxford University Press, 109–​136. Ross, W. D. 1988 (orig. 1930). The Right and the Good. Indianapolis: Hackett. Rubinstein, Ariel. 1989. “The Electronic Mail Game: Strategic Behavior Under Almost Common Knowledge,” American Economic Review 70: 385–​391. Sandel, Michael. 1998. Liberalism and the Limits of Justice, 2nd ed. Cambridge: Cambridge University Press. Sartre, Jean-​Paul. 1992. Being and Nothingness: A Phenomenological Essay on Ontology. Translated by Hazel E. Barnes. New York: Washington Square Press. Savage, Leonard J. 1954. The Foundations of Statistics. New York: John Wiley. Sayre-​McCord, Geoffrey. 2016. “Hume on the Artificial Virtues,” in The Oxford Handbook of Hume, ed. Paul Russell. Oxford: Oxford University Press, 435–​4 69. Scanlon, T. M. 1998. What We Owe to Each Other. Cambridge, MA:  Harvard University Press. Scanlon, T. M. 2003. “Metaphysics and Morals,” Proceedings and Addresses of the American Philosophical Association 77, no. 2: 7–​22. Scheuerman, William. 1999. Carl Schmitt: The End of Law. Lanham, MD: Rowman & Littlefield. Schmicking, Daniel A. 2007. “Schopenhauer on Unconscious Intelligence and Embodied Cognition,” History of Philosophy Quarterly 24: 89–​108. Schmitt, Carl. 1988 (orig. 1922). Political Theology:  Four Chapters in the Concept of Sovereignty. Translated by George Schwab. Cambridge, MA: MIT Press. Schneewind, J. B. 1984. “The Divine Corporation and the History of Ethics,” in Philosophy and History, ed. Richard Rorty, J. B. Schneewind, and Quentin Skinner. Cambridge: Cambridge University Press, 173–​192.

2 8 6   • 

References

Schneewind, J. B. 1996. “Voluntarism and the Foundations of Ethics,” Proceedings and Addresses of the American Philosophical Association 70, no. 2: 25–​42. Schoenfield, Miriam. 2016. “Moral Vagueness Is Ontic Vagueness,” Ethics 126: 257–​282. Schroeder, Mark. 1997. Slaves of the Passions. Oxford: Oxford University Press. Schroeder, Mark. 2005. “Cudworth and Normative Explanations,” Journal of Ethics and Social Philosophy (online), 1, no. 3, available at http://​jesp.org/​index.php/​jesp/​article/​view/​15. Schroeder, Mark. 2012. “Value Theory,” The Stanford Encyclopedia of Philosophy (Summer Edition), ed. Edward N. Zalta, available at http://​plato.stanford.edu/​ archives/​sum2012/​entries/​value-​theory/​. Schroeder, Mark. 2018. “Getting Perspective on Objective Reasons,” Ethics 128: 289–​319. Schroeder, S. Andrew. 2017. “Consequentializing and Its Consequences,” Philosophical Studies 174: 1475–​1497. Searle, John R. 2010. Making the Social World: The Structure of Human Civilization. New York: Oxford University Press. Sen, Amartya K. 1981. Poverty and Famines: An Essay on Entitlements and Deprivation. Oxford: Oxford University Press. Sen, Amartya K. 2017. Collective Choice and Social Welfare, expanded ed. Cambridge, MA: Harvard University Press. Shapiro, Scott J. 2002. “Authority,” in The Oxford Handbook of Jurisprudence and Philosophy of Law, ed. Jules Coleman and Scott J. Shapiro. Oxford:  Oxford University Press, 382–​439. Shiffrin, Seana. 1999. “Wrongful Life, Procreative Responsibility, and the Significance of Harm,” Legal Theory 5: 117–​148. Shoemaker, David W. 2007. “Moral Address, Moral Responsibility, and the Boundaries of the Moral Community,” Ethics 118: 70–​108. Shue, Henry. 1996. Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2nd ed. Princeton, NJ: Princeton University Press. Sidgwick, Henry. 1981 (orig. 1907). The Methods of Ethics, 7th ed. Indianapolis:  Hackett. Simmons, A. John. 2005. “The Duty to Obey and Our Natural Moral Duties,” in Is There A  Duty to Obey the Law? Christopher Wellman and A. John Simmons. Cambridge: Cambridge University Press, 91–​196. Singer, Marcus G. 1977. “Actual Consequence Utilitarianism,” Mind 86: 67–​77. Sinnott-​Armstrong, Walter. 1988. Moral Dilemmas. Oxford: Basil Blackwell. Smith, Adam. 1976. The Theory of Moral Sentiments. Indianapolis: Liberty Classics. Smith, Michael. 1999. “Moral Rationalism,” in the Cambridge Dictionary of Philosophy, 2nd ed. Robert Audi. Cambridge: Cambridge University Press, 587–​588. Sobel, David. 2012. “Backing Away from Libertarian Self-​Ownership,” Ethics 123: 32–​60.

References  • 

287

Sosa, David. 2001. “Pathetic Ethics,” in Objectivity in Law and Morals, ed. Brian Leiter. Cambridge: Cambridge University Press, 287–​329. Sreenivasan, Gopal. 2001. “Understanding Alien Morals,” Philosophy and Phenomenological Research 62: 1–​32. Sreenivasan, Gopal. 2003. “Does Informed Consent to Research Require Comprehension?” Lancet 362: 2016–​2018. Sreenivasan, Gopal. 2005. “A Hybrid Theory of Claim-​Rights,” Oxford Journal of Legal Studies 25: 257–​274. Sreenivasan, Gopal. 2010. “Duties and Their Direction,” Ethics 120: 465–​494. Steiner, Hillel. 2013. “Directed Duties and Inalienable Rights,” Ethics 123: 230–​244. Swinburne, Richard. 2015. “Necessary Moral Principles,” Journal of the American Philosophical Association 1: 617–​634. Temkin, Larry S. 2012. Rethinking the Good: Moral Ideals and the Nature of Practical Reasoning. Oxford: Oxford University Press. Thompson, Michael. 2004a. “Apprehending Human Form,” in Modern Moral Philosophy: Royal Institute of Philosophy Supplement, Vol. 54, ed. Anthony O’Hear. Cambridge: Cambridge University Press, 47–​74. Thompson, Michael. 2004b. “What Is It to Wrong Someone? A Puzzle About Justice,” in Reason and Value, ed. R. Jay Wallace, Philip Pettit, Samuel Scheffler, and Michael Smith. Oxford: Oxford University Press, 333–​384. Thomson, Judith Jarvis. 1986. “Self-​Defense and Rights,” in Rights, Restitution, and Risk. Cambridge, MA: Harvard University Press, 37–​42. Thomson, Judith Jarvis. 1990. The Realm of Rights. Cambridge, MA:  Harvard University Press. Ullman-​Margalit, Edna, and Sydney Morgenbesser. 1977. “Picking and Choosing,” Social Research 44: 757–​785. Velleman, J. David. 1999. “Love as a Moral Emotion,” Ethics 109: 338–​374. Velleman, J. David. 2009. How We Get Along. Cambridge: Cambridge University Press. Vogler, Candace. 1998. “Sex and Talk,” Critical Inquiry 24: 328–​365. Von Neumann, John, and Oskar Morgenstern. 1953. Theory of Games and Economic Behavior, 3rd ed. Princeton, NJ: Princeton University Press. von Wright, G.H. 1963. The Logic of Preference. Edinburgh: Edinburgh University Press. Voorhoeve, Alex. 2014. “How Should We Aggregate Competing Claims?” Ethics 125: 64–​87. Wallace, R. Jay. 2009. “Practical Reason,” in The Stanford Encyclopedia of Philosophy (Summer Edition), ed. Edward N. Zalta, available at http://​plato.stanford.edu/​ archives/​sum2009/​entries/​practical-​reason/​. Warren, Mary Anne. 1997. Moral Status: Obligations to Persons and Other Living Things. Oxford: Oxford University Press. Wedgwood, Ralph. 2009. “The ‘Good’ and the ‘Right’ Revisited,” Philosophical Perspectives, 23, Ethics: 499–​519.

2 8 8   • 

References

Weithman, Paul. 2010. Why Political Liberalism? On John Rawls’s Political Turn. Oxford: Oxford University Press. Wenar, Leif. 2005. “The Nature of Rights,” Philosophy & Public Affairs 33: 223–​252. Wenar, Leif. 2011. “Rights,” in The Stanford Encyclopedia of Philosophy (Fall Edition), ed. Edward N. Zalta, available at http://​plato.stanford.edu/​archives/​fall2011/​entries/​ rights/​. Wenar, Leif. 2013. “The Nature of Claim-​Rights,” Ethics 123: 202–​229. Wertheimer, Alan. 2011. Rethinking the Ethics of Clinical Research: Widening the Lens. New York: Oxford University Press. White, Morton G. 1956. Toward Reunion in Philosophy. Cambridge, MA:  Harvard University Press. Wiggins, David. 1980. “Deliberation and Practical Reason,” in Essays on Aristotle’s Ethics, ed. Amélie Rorty. Berkeley and Los Angeles: University of California Press, 221–​240. Wiggins, David. 2006. Ethics: Twelve Lectures on the Philosophy of Morality. Cambridge, MA: Harvard University Press. Williams, Bernard. 1973. “A Critique of Utilitarianism,” in Utilitarianism:  For and Against, ed. J. J. C. Smart and Bernard Williams. Cambridge: Cambridge University Press, 76–​150. Williams, Bernard. 1981. Moral Luck: Philosophical Papers, 1973–1980. Cambridge: Cambridge University Press. Williams, Bernard. 1985. Ethics and the Limits of Philosophy. Cambridge, MA: Harvard University Press. Williams, Bernard. 2000. “Philosophy as a Humanistic Discipline,” Philosophy 75: 477–​496. Wittgenstein, Ludwig. 2009. Philosophical Investigations, 4th ed. Translated by G. E. M. Anscombe, P. M. S. Hacker, and Joachim Schulte. Chichester, UK: Blackwell Publishing. Young, Iris Marion. 2000. Inclusion and Democracy. Oxford: Oxford University Press. Young, Peyton. 1998. Individual Strategy and Social Structure: An Evolutionary Theory of Institutions. Princeton, NJ: Princeton University Press. Ypi, Leah. 2013. “The Owl of Minerva Only Flies at Dusk, But to Where? A Reply to Critics,” Ethics & Global Politics 6: 117–​134.

INDEX

abstraction, process of, 15, 186, 258 acceptance, reflective. See ratification stage: reflective acceptance in Accra, Ghana. See semester in Accra, example of acting on another’s say-​so, 145–​147 agents, 44. See also individuals; persons vs. persons, 67, 94 Aggregate Relevant Claims (Voorhoeve), 55, 56 aggregative view, the. See moral reasoning: aggregationist; reasons: the weighing conception of Alduin and Schalduin (example), 121–124, 151, 162, 265 aliens, intelligent, 124, 132, 134 all affected, inclusion of the perspectives of. See moral authority: inclusiveness requirement of; ratification stage: inclusiveness important in Allais, Maurice, 50 Anderson, Elizabeth S., 14, 173, 210 Angell, Marcia, 10 animals, nonhuman, 86, 87, 129, 130 as potential right-​bearers, 113 Applbaum, Arthur, 48

Aquinas, Thomas, 17, 49, 51n, 73, 103 non-​reductively integrative moral theory of, 37 Aristotle, 41, 45, 49, 230 conception of desire of, 266n on deliberation, 162, 202 on ends, 205–​206 on ethics, 42, 157 on the good, 34n on human nature, 81, 119, 263 on rights, 128n and Thompson’s challenge, 80, 81, 82, 127 Arpaly, Nomy, 204, 206 articulating in the engineer’s sense, 13, 28, 63, 65, 273 the moral community, 7, 149 as voice-​giving, 7, 273 assault, an ambiguous case of, 102–​103 assurance problems, 72, 74 authenticity, 174 authority. See moral authority; political authority autonomy, 101, 106, 145 awareness, mutual. See ratification stage: mutual recognition of acceptance condition

2 9 0   • 

Index

Bagnoli, Carla, 64 balancing, intuitive, 56, 57, 196 Beauchamp, Tom L., 82, 130n Bentham, Jeremy, 58 Biasetti, Pierfrancesco, 90n, 93n, 109n Binmore, Ken, 182 blame, imputation of, 251, 253 Bohman, James F., 174 Botti, Daniele, 38n Bratman, Michael, 152n, 195n, 201n, 202, 207 Brewer, Talbot, 211n Broome, John, 19n, 43n, 51n, 52, 77n on consequentializing, 32 on rationality, 150n, 155 on reasoning, 170 Broughton, Gabriel, 13n, 20n, 109n, 227n, 252n Buchanan, Allen, 250, 251 Buridan’s ass, 160 Campbell, Thomas D. , 207n categorical imperative, the, 71 CEP. See constructive ethical pragmatism Chang, Ruth, 17n, 18, 197n Chappell, Timothy (Sophie Grace), 32n, 107n Cicero, 74, 122 circumstances of justice, the, 226, 228, 229 claim aggregation, 53, 54, 55 claim-​rights, 76. See also dyadic rights and duties; Hohfeldian incidents Cohen, G.A., 15n, 29, 41n, 236, 237 against fact-​sensitive principles, 218, 226–​235 coherence, practical, 19 commensurability. See also incommensurability deliberative, defined, 49 as a threat to indeterminacy, 29

commitments, 196, 204, 210–​211 analyzed in terms of ends, 212 common knowledge condition, 141, 181 set aside, 182 communication, intercultural, 124, 125 comparativism, 18, 19 Complex Hybrid Theory of dyadic rights, 110n, 112n, 114n. See also dyadic rights and duties compromise, 214–​216. See also working things out together: via compromise concealment, fraudulent. See obligations possibly (once) new conceptual analysis, 43, 44 conflicting moral considerations, 106, 108 Confucius, 74 consequentialism, 8, 19 anodyne defined, 31 not denied, 32 proper, 34, 48, 52, 56 defined, 33 difficulties guiding deliberation of, 42 incompatible with CEP, 39, 40 versions idealizing the good, 58 weaknesses of, 37 scalar, 33n consequentializing, 32, 35 considered moral judgments, 21, 55, 237 constructive ethical pragmatism, xii, 3, 4, 28, 31 as apt for delimited topics, 31, 55 its constructive aspect, 9, 38 incompatible with consequentialism and deontology, 8, 39, 40 and moral particularism, 100n, 269 as a nonreductively integrated moral theory, 37, 38

Index  • 

and the participant conception of rules, 265 its pragmatist aspect, 38 spirit of, invoked, 83, 237 supported by the account of authority, 264–​267 working definition, 39, 264 constructivism, not exemplified by constructive ethical pragmatism, 38 contingency, 24, 29, 38, 39 in moral authority, 152, 176, 224, 248, 272 in moral grounding, 233 of moral practices, 83, 128, 185 of social practices, 73, 96, 101 contractualism, 100 contradiction-​in-​the-​will test (Kant), 52n, 71, 72 conventions, 3, 69, 100n contrasted with ratification, 181, 182 Lewisean, 141 local in provenance, 81 can be joined by decentered authority, 121 convergence stage, 29, 137–​142, 166 as checking unilateral specification, 270 as de facto, 25, 139 input stage’s importance to, 136 legitimacy conditions of, 27, 140, 148, 189 as rationally reconstructable, 156, 247 reasoning in, 154, 171 selection as as presupposed by, 135 coordination, ethical, 70–​72, 74, 112 Copp, David, 111n, 240 correlativity, ontological, 77–​78, 89, 91, 104, 261 established, 111 in the law, 262

291

Council for International Organizations of Medical Sciences (CIOMS), 11, 140 counterparties. See dyadic rights and duties: counterparties of critical race theory, 44 Cruft, Rowan, 102n, 107n, 108n, 111n, 115n Cudworth, Ralph, 29, 218, 219–​225, 236. See also Platonism essentialism re act-​types of, 219–​223 Cutter, Brian, 241 Dancy, Jonathan, 4n, 5n, 100n, 157 Darwall, Stephen, 75n, 83n decenteredness. See moral authority: decentered; morality: decentered structure of decisionism, avoided, 160–​161 decision theory. See rational choice theory Declaration of Helsinki, 11 decounter rule (Makinson), 265n deference to claimed authority, 168 as an obstacle to joint reasoning, 169 DeGrazia, David, 65 deliberation See moral reasoning; reasoning deliberation-​g uidingness,  42 advantage of CEP regarding, 56–​59 desideratum in moral theory, 41, 236 interpreted, 43 for linking to what we care about, 44 for nonsense-​avoidance,  45–​47 for shallowness-​avoidance,  43–​4 4 Dennett, Daniel, 211 deontology, 8, 19, 48, 52 contemporary, 58 defined, 33 and deliberation-​g uidance, 56

2 9 2   • 

Index

deontology (cont.) glossed, 34 incompatible with CEP, 39–​4 0 strict, 53, 57 weaknesses of, 37 desert vs. needs (example), 214–​216 desires or preferences ideally massaged, 203 intrinsic, 203–​204 weighing of, 201 Dewey, John, 38, 108, 170 on ends in view, 202 dilemmas, moral, 16–​18 directed duties. See dyadic rights and duties disabiliities. See humans with severe cognitive disabilities disagreement metaphysically impossible to resolve, 248, 255 real, explanation of, 243 discretion See moral discretion division of labor, in general, 73–​74 division of moral labor, 72, 163, 182, 185 and reasoning, 159, 170 as social, 88, 94, 97, 98, 104, 126–​129 and underlying concerns, 99, 100 dominant end, a, 41n, 51. See also ends, final Donagan, Alan, 17n Dougherty, Tom, 122n Dr. Jones’s principle re placebos (example), 9–​11, 105, 116, 137, 190 Dreier, James, 32, 35, 151n, 243 dualism of practical reason, the (Sidgwick), 52 duties, dyadic. See dyadic rights and duties duties, monadic. See monadic rights and duties

duty, the patient of a, 76, 92. See also dyadic rights and duties glossed, 67 Dworkin, Ronald, 94 dyadic rights and duties, xii, 23, 75, 83. See also Interest Theory; Kind-​ Desire Theory; Specificatory Theory; Will Theory counterparties of, 76, 115, 117 existence of, 77 as historically attained, 22, 128, 137, 138, 141 moral beyond the paradigm case, 269–​271 paradigm case of, 87, 112, 115, 116 the social background of, 93, 263 as structuring the moral community, 69, 73–​74, 82, 84 Earl, Jacob C., 184 Ebels-​Duggan, Kyla, 69n, 72, 174 Eller, Madeline, 48n Emanuel, Ezekiel J., 11n employment security, human right to,  97–​98 empowering norms, 6, 15, 138, 151, 152 and moral realism, 160 and the present generation, 187 as reconciling authority with moral realism, 218 empowerment of deliberators, useful, 159 jurisdictional, 163, 175 glossed, 162 and reasoning, 164, 165 ends, final, 202, 206. See also for-​the-​sake-​of relation; dominant end, a analyzed, 266 elevation to, of means, 209 intermediate, 204, 206, 209, 234, 266

Index  • 

pairs of, each sought for the other’s sake, 232–​235 reasoning about, 205–​211, 213 regulatory condition of, the commitment as captured by, 212 stated, 208 superordinate, 209 Engstrom, Stephen, 71n, 179n Enoch, David, 44, 224n, 249 epistemic justice. See injustice, epistemic equality. See fundamental moral equality of persons error, moral. See moral error Estlund, David, 143n eternal core of morality. See morality: conceivable eternal core of ethical state of nature, the (Kant), 69 eudaimonia, 49 evaluation, 50, 52, 53 ex post facto legislation, 253 expected value, 50, 51 expressive norms, 210 Eylon, Yuval, 112n fact-​sensitive principles. See moral norms, fact-​sensitivity  of familial obligations. See obligations possibly (once) new Feinberg, Joel, 90 feminist theory, 44, 47, 48 Ferrero, Luca, 44 Ferzan, Kimberly Kessler, 113n filial obligations. See obligations possibly (once) new finality, ordering of, 206. See also for-​the-​ sake-​of relation asymmetries sometimes found in, 207, 266 as deliberation-​enabling, 207 objective version, 210 as shaping a conception of the good, 212n

293

subjective version, 211 three ways of restructuring, 209 first contact, moment of, 81 Føllesdal, Andreas, xi, xii, xiii Fontane, Theodore, 164 Foot, Philippa, 17, 46n forceless force of the better argument, ideal of the, 159 Forst, Rainer, 112, 128, 177 for-​the-​sake-​of relation analyzed, 205–​208 unexplicated by orthodox views, 204 Frankfurt School, the, 43 Franklin, Benjamin, 197n fraud, 73 freedom, 20 Frey, R.G., 82 Fricker, Miranda, 172 fundamental moral equality of persons, 26, 47, 64, 105, 261 as insensitive to views and behaviors, 167–​168 proleptically referred to, 107 future generations and ratification, 177–​183 game theory, evolutionary, 141 gaps in morality. See morality: indeterminacy in generality. See moral authority: generality requirement of; ratification stage: must involve generality Gert, Bernard, 4n, 142–​145 Gibbard, Allan, 243n gift-​giving, obligations related to, 74 Gilbert, Margaret, 181 Godfrey, Ashli, 48n good, the. See also right and the good, the maximization of, 48 revision of, as topic for another time, 267

2 9 4   • 

Index

grandparental obligations (example), 12 grounding, normative, 227 possible symmetry in, 231, 232 typical asymmetry of, 234, 235 Guerrero, Alex, 208n Günther, Klaus, 128 Habermas, Jürgen on argument’s forceless force, 158 discourse ethics of, 157, 159n, 161, 167, 172n on political reasoning, 161 Halstead, John, 54n Harding, Sandra, 48 Hare, R.M., 5, 6, 34n, 157 Harel, Alon, 107n, 112n Harman, Elizabeth, 66n, 184 Harman, Gilbert, 170 Harsanyi, John D., 157, 159, 161 Hart, H.L.A., 110 Haslanger, Sally, 173 Hayward, Tim, 75n, 77n, 89 Hedahl, Marcus, 67n, 86, 104n, 112n hedonism, 58 Hegel, Georg Wilhelm Friedrich, 43, 64, 65, 179n Helm, Bennett, 113n Herman, Barbara, 9n, 53n, 74n, 99n, 100n, 107 Heuer, Kelly, 160n Hieronymi, Pamela, 42, 155n historicism, 30 Hobbes, Thomas, 6, 7 Hohfeld, Wesley Newcomb, 89, 90, 91n Hohfeldian incidents, 90, 91, 93 Hohfeldian opposites and correlatives, 89 Honneth, Axel, 64 Horty, John F., 197 Horwich, Paul, 243 Huget, Hailey, 69n

Human Radiation Experiments, U.S. Advisory Committee on, 250 human rights. See also moral rights as initially monadic, 94 as needing to be specifically addressed to agents, 96–​98 humans with severe cognitive disabilities, 129, 130, 131 Hume, David, 100, 119, 182 and Thompson’s challenge, 80, 81 humility. See also modesty in moral judgment philosophical, 45 inclusiveness. See moral authority: inclusiveness requirement of; moral community, the: its unity and inclusiveness; ratification stage: inclusiveness important in incommensurability, 200. See also commensurability of goods, 49, 51–​53 of moral principles, 161 indeterminacy. See moral authority: indeterminacy-​ reducing; morality: indeterminacy in indeterminacy-​reducing moral progress. See moral progress: indeterminacy-​reducing individuals. See also agents; persons morally competent, 86 as participating in ratification, 180 not morally competent, 86, 113 cannot hold dyadic moral duties, 87 may hold dyadic moral rights, 87, 115 potentially included in the moral community, 129 injustice, epistemic, 172–​173 input stage, 15, 25, 88, 265

Index  • 

as autonomy-​friendly, 149 felicity and legitimacy conditions of, 26 joint reasoning in, 147, 154, 156, 171, 172, 247 jurisdictional empowerment in, 165 particular authority exercised in, 146, 166 as rationally reconstructable, 191 why needed, 136 institutions, 99, 100 intelligence, practical, 38, 105, 106, 261, 265 Deweyan gloss of, 107, 170 of the joint moral reasoner, 173 and openness to reconsideration, 174 intention, 156 planning theory of (Bratman), 207 intentionality-​dependence, 241–​242,  246 Interest Theory of rights, 28, 76, 88, 90, 114. See also dyadic rights and duties as reductionist, 91, 261 intermediate ends. See ends, final intimidation, as undercutting joint reasoning, 172 Jaworska, Agnieszka, 65 Jeffrey, Anne, 25n, 183n Jones, Peter, 107n joint moral reasoning. See moral reasoning: joint jurisdictional empowerment. See input stage: jurisdictional empowerment in Justifications, a shared space of, 177 Kamm, Frances M., 57, 66, 111n Kant, Immanuel, 7, 65, 157, 177. See also contradiction-​in-​the-​will test; kingdom of ends, the on autonomy, 145, 179

295

on the ethical community, 63, 64, 69–​73,  112 built on in the account here, 127n his grounding of morality, 44, 119 on justice, 102, 103 linking reason, freedom, and the will, 160–​161,  163 on non-​human animals, 130 on reason, 45, 263 on the right and the good, 52 and Thompson’s challenge, 80, 83, 127 Karnein, Anja J., 187 Kelly, Erin, 208n Kind-​Desire Theory of rights, 92n, 114 as not seeking to ground ontological correlativity, 261 kingdom of ends, the, 65, 69, 83, 127, 157 Kittay, Eva Feder, 65 Koksvik, Ole, 164n Kolodny, Niko, 102 Korsgaard, Christine, 44, 204n Kramer, Matthew H., 91n Kritz, Jessica, 206n Kukla, Rebecca, 118, 180 Kumar, Rahul, 184 Laden, Anthony Simon, 173 on social reasoning, 161, 163n, 170, 174 latitude, moral, 69, 70, 71 law, private, 98 Lazar, Seth, 51n learning, practical, 204 about ends, 209 legitimacy of moral authority, 39, 156 conscientiousness required for, 116, 154 mutual respect required for, 116 responsiveness to perspectives required for, 167 Lévinas, Emmanuel, 177 Lewis, David, 141, 181

2 9 6   • 

Index

liabilities, correlative to moral powers, 89, 92 liberalism, 167–​168 List, Christian, 165 Lombards and Schlombards (Thompson), 81, 120, 121 love, 174 Luban, David, 214–​216 Luther, Martin, 211, 212 Machiavelli, Niccolò, 32n, 48, 49, 53 MacIntyre, Alasdair, 190 Mackie, J.L., 243 MacKinnon, Catharine, 173 Macklin, Ruth, 11 Makinson, David, 265n Manela, Anthony, 77n Marcus, Ruth Barcan, 17, 19 Marx, Karl, 43 Mason, Kelby, 170 May, Kenneth, 5–​6 Mayo, Bernard, 211 McClennen, Edward, 213n means elevated to ends, 209 medias res, beginning in, 4, 8, 56, 83 as opposed to working with an idealized good, 59 CEP as advising, 59 in moral theory, 9, 21, 28 with moral norms, 235 Mill, John Stuart, 7, 94n, 199, 214n on rights, 94 Millgram, Elijah, 209n Mills, Charles W., 44n mind-​dependence. See moral objectivity Misak, Cheryl, 143n, 254n mistake. See moral error modesty in moral judgment, 16, 232, 250. See also humility monadic rights, addressability of, 95

monadic rights and duties, 76–​77, 86, 106, 110 bearers of moral ones, 134 presumed by account of dyadic ones, 86, 119 Moody-​Adams, Michele M., 14 Moore, G.E., 222, 242 moral authority, 3, 8. See also moral progress: indeterminacy reducing autonomy-​based critique of, 145–​149 in cases involving morally incompetent right-​holders,  271 collective self-​rule as not embodied by, 179 conscientiousness condition, 27, 105, 108, 111, 112, 116, 123, 137, 138, 144, 175, 262, 270 useful for objectivity, 246 constitutive, not epistemic, 144, 145 contrasted with political authority, 8, 179, 180, 262 decentered, 21–​22, 119, 126, 136, 145, 262 delimited, 115, 270 in a way that mitigates taint, 256 epistemic constraint on, 26, 40n, 109, 116, 246 useful for objectivity, 246 felicity vs. legitimacy conditions of, 26 generality requirement of, 166, 169 inclusiveness requirement of, 166, 169 indeterminacy-​reducing, 25, 153, 254, 259 limitation defended, 271 not always optimal, 258 not always progress, 20, 257 legitimacy conditions, 154, 156 as the moral community’s, 65, 147–148, 168, 267 not mere say-​so, 246 objection from the set of first-​order reasons, 196

Index  • 

objectivity of, 152–​153 particular, 24, 117, 135–​136, 146 the possibility of, 142–​145, 264, 267 as potentially reversible, 148, 186 procedural conditions of, as lessening taint, 256, 258–​259 to reject norms, implausible, 268 the three-​stage process of must be reconstructable as reasoning, 172 whether irreparably tainted, 256–​259 the three-​stage account of, 21–​27, 63, 116, 147 need not involve deference, 168 summarized, 27 useful even when it cannot be mistaken, 269 whether extendable beyond specifying, 268–​269 moral commitments. See commitments moral community, the, 4, 28 actuality of, 64 articulated, 100, 149 disjunctively defined, 68, 69 as embracing all persons, 64, 75, 80 final gloss, 80 interim gloss, 68 the membership of, 65, 68, 129 extendable via moral authority, 130 left quite open, 68 limited to bearers of monadic rights, 113, 130 its open-​endedness, 26, 80, 84, 120, 124, 263 at least as among contemporaries, 184 glossed, 29 reflective equilibrium of, 39 its structure, 63, 65, 68–​69, 119 its uniqueness, 79 its unity and inclusiveness, Thompson’s Challenge to, 28, 75–​79, 118–​134,  262 the voice of, 6, 272, 273

297

moral concepts corruption of, 43, 44 moral dilemmas, 254 moral disagreement as occasioning working things out, 126, 133 moral discretion, 121 authorized, 28, 85 compatible with objectivity, 246 exclusive, regarding particulars, 162 extending moral status not a role for, 132 legitimate, 155 objective morality as limiting, 28, 86, 109, 139 as pervasively arising, 113 special responsibilities as giving rise to, 105, 120 moral error, 14, 20 possible introduction of new, 20 moral expertise, 142–​144 moral indeterminacy, metaphysical objection to, 195, 196 moral innovation See moral norms: new morality conceivable eternal core of, 29, 148, 218, 227 decentered structure of, 9 indeterminacy in, 39, 93n incommensurability as generating, 161, 200 moral dilemmas as generating, 16–​18,  108 novel questions as generating, 16 objective core of, 15, 23, 149, 179, 256 assumption of, 5, 240 assurance principle as contained in, 21, 22 as limiting force, fraud, and arrogance, 26 society-​centered theory of (Copp), 240 uniformity of, as possibly valuable, 10

2 9 8   • 

Index

morality (cont.) universality of, 4–​9, 123, 147, 152, 272 limited to actual people, 249 particular norms as lacking in, 24 moral labor, division of. See division of moral labor morally possible worlds, 227 morally urgent tasks, 72 moral norms, 33. See also obligations possibly (once) new domain-​specific,  12 fact-​sensitivity of, 226–​235, 226, 249, 250 broad vs. narrow (Pogge), 231 not to be disparaged, 236 new, xi, 13, 26–​27, 149–​152, 236, 272 examples of, 9, 11, 121 glossed, 149 objectivity of, 245–​247, 247–​50 path-​dependence in establishing, 247–​250 as underivable, 150, 151 non-​ideal, role for, 257 prima facie, 56 specifying of, xi, 13, 24, 57, 223 ultimacy of, linked by Cohen to breadth, 229 as underlain by moral concerns, 100, 101, 107 validly binding, 6, 251, 255, 268 moral objectivity, xi, 4, 29, 30. See also path-​dependence; retrospective moral judgment desiderata for an account of, 238 questions concerning, 240 a working conception of, 241–​245 moral particularism, 4n, 226n, 230n, 253n, 269 moral point of view, the, 34, 35 moral powers, xii, 90 of control, 92, 110 as correlative to liabilities, 92

the derivation path distinctively offered by, 151, 224 differentially distributed, 162, 163 distinguished from ordinary powers, 111, 112 of the duty-​holder, not overemphasized, 111–​113 as necessarily dyadic, 93 neither coercive nor forceless, 163 over future generations, limited, 185, 186 to specify, 28, 86, 150, 261 as the basis of dyadic duties, 105, 110 as tightly delimited, 109, 270 moral progress. See also moral authority epistemic, 14, 251 indeterminacy-​reducing, 13–​21, 64, 138 as authoritative, 20 difficult to recognize, 19 freedom as affected by, 20 moral psychology, 29 Aristotelian, 202, 205, 265–​266 as capturing commitments, 212 supporting compromise, 214 neo-​Humean, as failing to capture end-​means reasoning, 203, 204 moral questions, novel, 16, 222 moral realism, 218, 219–​225, 239 moral reasoning. See also planning; reasoning abstract and idealized models of, criticized, 158–​165 aggregationist, 55 closure in, 161 joint, 29, 55, 154–​175 aim of the account of, 158, 161 compatible with jurisdictional empowerments, 164 defects of, 172

Index  • 

embodied, 169–​175 individual vetoes out of place in, 163, 164 moral-​psychology objection to, 195–​196, 201–​204,  205 mutual attunement called-​for in, 174, 175 mutual responsiveness called-​for in, 171, 173, 175 openness and explicitness of, 169 three needed types, 156, 171 particularistic models of, not here useful, 157–​158 as a species of practical reasoning, 155, 156 in the three-​stage process, 155, 156 moral relativism, 239, 244 moral responsibility, division of. See division of moral labor moral rights. See also human rights addressed to agents, 95, 106, 115, 127, 128, 131, 134, 265, 272 examples, 104 as intelligent beings, 107, 110–​111 via practices, 103, 123 against assault, 102 against torture, 103 to personal privacy, 99, 100, 101, 104 to property, 101, 102 underlain by moral concerns, 108 moral status. See moral community, the: the membership of Moss, Sarah, 219, 232–​235 Murphy, Mark C., 37, 95n, 103n, 218n naturalism, 127 compatibility of the account with, 128, 225 Nelson, Benjamin, 125 new moral norms. See moral norms: new nonidentity problem, the, 184

299

nonreductively integrative moral theory, 37, 264 normative systems disagreeing, but unitable, 124–​126 individuation thereof, 79, 80 isomorphic,  79–​81 unitable, 121–​124 norms, expressive. See expressive norms norms, moral. See moral norms norms, social. See social norms novelty. See moral questions: novel Nussbaum, Martha C., 130n, 131, 157, 174, 200 objective core of morality. See morality: objective core of objectivity. See moral objectivity obligations possibly (once) new. See also moral norms: new ancillary-​care,  166 concealment, fraudulent, 121–​124 familial, 71, 99, 100, 104, 106, 137 moral concerns underlying, 101 informed consent, 251–​252, 254, 255 promissory, 21, 25, 102, 104 moral concerns underlying, 101 often seemingly sharp-​edged, 113 O’Neill, Onora, 94, 103n ontological correlativity. See correlativity, ontological openness of reasoning. See moral reasoning: joint: openness and explicitness of; ratification stage: openness requirement in Open Question Argument (Moore), 222 options, re-​individuating, 213 ordering of finality. See finality, ordering of ought all-​things-​considered,  17,  18 moral, 17

3 0 0   • 

Index

ought-​claims,  227 and the balance of reasons, 197, 217 Standard Model of (Schroeder), 221–​223,  226 resisted, 225 outsiders, 81 overridingness, glossed, 17 Owens, David, 101n Pallikkathayil, Japa, 151n parental obligations. See obligations possibly (once) new Parfit, Derek, 50, 184 participant conception of rules, 105, 108, 246, 261, 265 particularism. See moral particularism partitioning principle, a, 227, 228, 230, 239, 249 as reconciling account here to Cohen’s argument, 228, 229 path-​dependence, 247–​250. See also moral objectivity patient of a duty. See duty, the patient of a Peirce, C.S., 254n person-​affectingness,  68 persons. See also agents; individuals the dyadic relations entered into by, 65,  67–​68 individual vs. corporate, 64n moral, 66, 80, 115 moral vs. legal, 65 vs. agents, 67, 94 Pettit, Philip, 21n, 112n, 173 on domain objectivity, 242, 243 philosophers, 47 merely as facilitating moral innovation, 53n not presumed to have moral expertise, 144 Pietroski, Paul M., 196 Pildes, Richard H., 210

Pinkard, Terry, 64 Pippin, Robert, 64 pirates, 180, 181 planning, 213. See also moral reasoning regulation of by ends, 202, 208, 209 Plato, 41, 42, 49, 50 Platonism. See also Cudworth, Ralph Cudworth’s, 220, 225 as questioning deliberation-​g uidingness,  41 pleasures, 49, 50 Pogge, Thomas, 88, 99 on G.A. Cohen, 219, 228, 230, 233 on human rights, 95–​97 political authority, 7 Raz’s Service Conception thereof, 199, 200, 269 political communities, contrasted with the moral community, 7 Portmore, Douglas, 31n, 32, 35, 52n possible worlds. See morally possible worlds power. See also moral power relation of reason to, 158, 159 practical intelligence. See intelligence, practical practices evolving, as reshaping underlying moral concerns, 107 moral, reconceived by the Specificatory Theory, 126 pragmatism, ethical. See constructive ethical pragmatism preferences. See desires or preferences prerogative, moral, 55, 56 Price, Richard, 222 principles. See also empowering norms; moral norms promise-​keeping norm, 99, 100, 107 as example of a new moral norm, 21, 22, 25 public figure, notion of, as contingent, 24

Index  • 

publicity requirement, 57, 142, 144 Pufendorf, Samuel, 77n Quine, W.V.O., 38n Rabinowicz, Wlødek, 77n, 152n, 206 radiation experiments (example), 250–​256 ratification stage, 15, 27, 176–​192 acceptance of a norm as universal in, 181 as autonomy-​compatible, 149 backward-​looking conditions of, 187 as checking unilateral specification, 270 condition linking acceptance and input, stated, 188 conditions of the, summarized, 191, 263–​264 critical vetting condition, stated, 189 deference-​neutralizing, potentially, 168 inclusiveness important in, 167 joint reasoning in, 29, 154, 156, 172 must involve generality, 166 mutual recognition of acceptance condition, stated, 183 openness requirement in, 178 rational reconstruction condition, 190, 247 stated, 191 reasoning in, 171 recognition of reasonable input condition, stated, 188 reflective acceptance in, 26, 148, 189, 252 broad and inclusive, 181 by the moral community, 176 mutual recognition of, 177–​183 some group perspectives irrelevant in, 180 unanimity not required in, 180 understandability requirement in, 178

301

rational choice theory, 46, 213 Rawls, John, 36, 43, 51, 55, 99, 236 on autonomy, 148 constructivism of, 160n critique of intuitionism of, 56, 57 on deliberation, 49n, 171 on deontology, 8n, 33n fact-​sensitive principles of, 226 on justice, 187, 216n, 228 on objectivity, 244 political liberalism of, contrasted with project here, 178–​179 pragmatism in, 38n on public identity, 168 on right and the good, 32, 34, 41n, 52n, 57 his theory as example of CEP, 40, 41, 56 veil of ignorance of, 157, 159, 161 Raz, Joseph, 5n, 9, 15n, 267n on authority, 139n, 146 the Service Conception of, 199, 200, 269 on domain objectivity, 242 Interest Theory of, 91, 114 on reasons, 195n, 197–​199, 201 on rights, 76, 77n, 261 reasoning, 155n, 169–​170. See also moral reasoning dialogical vs. monological, 170, 171 discipline required in, 164 end-​means, 201, 202 reductionism about, rejected, 171 reasons, 155 content-​independent and peremptory (CIP), 146 exclusionary, 198, 199 not here held not prior to norms, 217 the set of first-​order, 196–​201 the weighing conception of, 197–​198 recognition, interpersonal, 64n, 112 reflection, freedom of, 45

3 0 2   • 

Index

reflective acceptance. See ratification stage: reflective acceptance in reflective equilibrium, 57 relativism, moral, 30, 39 requirement not to believe one is exercising discretion See moral authority: epistemic constraint on rescue, 72 respect, 112, 223 responsibilities, special. See special responsibilities retrospective moral judgment, 250–​256 and truth, 253 right and the good, the, 45. See also good, the contrast between, reconstructed, 32, 33,  35–​36 as revisable in light of each other, 38, 40, 54, 55, 57, 99n, 267 rights, dyadic. See dyadic rights and duties rights, monadic. See monadic rights and duties rights, moral. See moral rights Ripstein, Arthur, 98 risk and uncertainty, 50, 51 roles, morally relevant, 74 Rǿnnow-​Rasmussen, Toni, 206 Rosen, Gideon, 78n, 234, 235n Ross, W.D., 17, 18, 56, 157n Rousseau, Jean-​Jacques, 43 Rubinstein, Ariel, 183 rule-​fetishism, avoidance of, 48, 107 Sartre, Jean-​Paul, 174–​175 Savage, Leonard J., 50 Sayre-​McCord, Geoffrey, 100 Scanlon, T.M., 22, 102, 155, 239 Scheuerman, William, 161 Schmicking, Daniel A., 170

Schmitt, Carl, 161 Schneewind, J.B., 219 Schoenfield, Miriam, 16 scholasticism, danger of, 46 Schroeder, Mark, 34n, 197n on Cudworth, 218, 221–​225 Standard Model of ought-​explanations of, 221–​223, 226 resisted, 225 Schroeder, S. Andrew, 32 Schroeder, Timothy, 204, 206 Scythian constitution (example), 162 Searle, John, 241 second-​order authorizing norms. See empowering norms semester in Accra, example of, 206, 209 Sen, Amartya K., 163n on fact-​sensitive commitments, 226n Setiya, Kieran, distinction re derivations, 90n, 151, 224 Shapiro, Scott J., 149 Shiffrin, Seana, 184 shmagency objection, the (to agency-​ based constitutivism), 44 Shue, Henry, 88, 96, 97 Sidgwick, Henry, 52, 55, 58 Simmons, A. John, 5n sincerity. See moral authority: conscientiousness condition Sinclair, Tom, 100n, 107n Sinnott-​Armstrong, Walter, 17n, 170, 200 Smith, Adam, 141, 157 Smith, Michael, 203n, 218n, 219 Sobel, David, 23n social choice theory, 46 social constructivism, 103 social norms, 140 Socrates, 50 Sosa, David, 242

Index  • 

source of a duty, the, contrasted with the counterparty, 77 special responsibilities, 28, 74, 108 of the addressees of rights, 112 and differential knowledge, 142, 143 as discretion-​generating, 105 as forward-​looking, 106 respecification of, 107 specification See moral norms: specifying of; moral powers: to specify specifications, alternative, 149 Specificatory Theory of dyadic moral rights, 114, 260–​261. See also dyadic rights and duties its aim, 88 moral discretion, as building on 119–​120 decentered authority, as supported by, 119 five-​step argument for, 105–​111, 123, 124, 128 implications of for personhood, 134 inalienable rights, as captured by 115 intelligibility of the, 110, 265 as nonreductive, 92 open re the set of right-​holders, 86, 88 presumes monadic rights, 105–​111, 131 as resting on a social division of labor, 127–​128 seemingly precise duties, as handled by, 113–​114 stated, 86 third-​party beneficiary cases, as handled by 114–​115 Thompson’s challenge, as answering 133, 262 Sreenivasan, Gopal, 76 Complex Hybrid Theory of, 110n, 112n, 114n on deontological rights, 94, 130 on moral disagreement, 125n

303

stalactites, wonton destruction of, 67, 130 standing, moral, 75n standpoint theory, 47–​48 starting in the middle of things. See medias res, beginning in Steiner, Hillel, 93n, 115 superordinate ends. See ends, final supervenience, 5n, 224 Swinburne, Richard, 224 Tannenbaum, Julie, 65 Temkin, Larry S., 49, 55 Thomism. See Aquinas, Thomas Thompson, Michael, 28, 66, 75–​84, 89n, 91, 263 on Aristotle, 263 as contrasting agents and persons, 67, 94 on isomorphic systems, 121 Thompson’s challenge. See moral community, the: its unity and inclusiveness Thomson, Judith Jarvis, 90, 114n three-​stage account, the. See moral authority: the three-​stage account of Threet, Daniel, 24n, 136n trolley cases, 46, 49, 57 truth moral, 42 Rawls’s substitution of “correctness” for, 244 robust vs. minimalist theories of, 243 truth-​conditions. See ultimate truth-​ makers of moral claims Tumulty, Jesse, 75n ultimate truth-​makers of moral claims, 13, 15, 253, 255, 268 contrasted with validity conditions for moral norms, 6 eternal, possibly 228

3 0 4   • 

Index

unanimity. See ratification stage: unanimity not required in uncertainty. See risk and uncertainty underlying moral concerns. See moral norms: as underlain by moral concerns uniformity of morality. See morality: uniformity of unity of the moral community. See moral community, the: its unity and inclusiveness universality of morality. See morality: universality of urgent tasks. See morally urgent tasks validity conditions on moral norms, 39 contrasted with ultimate truth conditions, 6 validly binding moral norms. See moral norms: validly binding value incommensurability. See incommensurability Velleman, J. David, 175, 205n violence, as undercutting joint reasoning, 172n virtue theory, 8 as a standard of goodness, 34, 37 Vogler, Candace, 174 voice of the moral community. See moral community, the: the voice of voluntarism, divine, 219–​223 von Wright, G.H., 204 Voorhoeve, Alex, 53–​56 Wallace, R. Jay, 102, 203 Warren, Mary Anne, 65 Wedgwood, Ralph, 33, 51n weighing. See desires or preferences: weighing of; reasons, the weighing conception of

Weithman, Paul, 151n Wenar, Leif, 23, 87n, 89, 90, 93 Kind-​Desire theory of, 92n, 114, 261 Wertheimer, Alan, 255n White, Morton G., 38n Wiggins, David, 100, 202n Will Theory of dyadic rights, 28, 88, 91, 114, 261. See also dyadic rights and duties as casting individuals as small-​scale sovereigns, 110 as non-​reductively invoking moral powers of control, 92 as positing powers of control, 90 as subject to counterexamples, 93, 115 Williams, Bernard, 5, 48, 248n, 251 wishful thinking, 164–​165 Wittgenstein, Ludwig, 46, 47, 124n working things out together, 29, 71, 85, 87, 154–​175. See also moral reasoning: joint among the counterparties, 123, 247 as generally but not always desirable, 87, 112, 270 moral disagreement as occasioning, 126, 133 trust required in, 72 via compromise principled, 213 the psychology of, 212–​216 wronging as a dyadic notion, 66, 68, 94 purported monadic reduction of, 66 Young, Iris Marion, 48 Young, Peyton, 141, 142 Ypi, Leah, 100