Nomocratic Pluralism : Plural Values, Negative Liberty, and the Rule of Law [1st ed.] 9783030533892, 9783030533908

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Nomocratic Pluralism : Plural Values, Negative Liberty, and the Rule of Law [1st ed.]
 9783030533892, 9783030533908

Table of contents :
Front Matter ....Pages i-xii
Introduction (Kenneth B. McIntyre)....Pages 1-8
The Critique of Moral Monism (Kenneth B. McIntyre)....Pages 9-35
Morality and the Incompatibility and Incommensurability of Values (Kenneth B. McIntyre)....Pages 37-63
Practical Reason, the Importance of Personal Commitments, Plans, and Projects, and the Minimum Content of Morality (Kenneth B. McIntyre)....Pages 65-97
Varieties of Pluralist Political Theories: Modus Vivendi Pluralism and Egalitarian Pluralism (Kenneth B. McIntyre)....Pages 99-130
Liberal Pluralism, Negative Liberty, and Toleration (Kenneth B. McIntyre)....Pages 131-165
Negative Liberty, the Rule of Law, and Nomocratic Pluralism (Kenneth B. McIntyre)....Pages 167-192
Conclusion (Kenneth B. McIntyre)....Pages 193-197
Back Matter ....Pages 199-214

Citation preview

PALGRAVE STUDIES IN CLASSICAL LIBERALISM SERIES EDITORS: DAVID F. HARDWICK · LESLIE MARSH

Nomocratic Pluralism Plural Values, Negative Liberty, and the Rule of Law Kenneth B. McIntyre

Palgrave Studies in Classical Liberalism

Series Editors David F. Hardwick Department of Pathology and Laboratory Medicine The University of British Columbia Vancouver, BC, Canada Leslie Marsh Department of Pathology and Laboratory Medicine The University of British Columbia Vancouver, BC, Canada

This series offers a forum to writers concerned that the central presuppositions of the liberal tradition have been severely corroded, neglected, or misappropriated by overly rationalistic and constructivist approaches. The hardest-won achievement of the liberal tradition has been the wrestling of epistemic independence from overwhelming concentrations of power, monopolies and capricious zealotries. The very precondition of knowledge is the exploitation of the epistemic virtues accorded by society’s situated and distributed manifold of spontaneous orders, the DNA of the modern civil condition. With the confluence of interest in situated and distributed liberalism emanating from the Scottish tradition, Austrian and behavioral economics, non-Cartesian philosophy and moral psychology, the editors are soliciting proposals that speak to this multidisciplinary constituency. Sole or joint authorship submissions are welcome as are edited collections, broadly theoretical or topical in nature.

More information about this series at http://www.palgrave.com/gp/series/15722

Kenneth B. McIntyre

Nomocratic Pluralism Plural Values, Negative Liberty, and the Rule of Law

Kenneth B. McIntyre Sam Houston State University Huntsville, TX, USA

ISSN 2662-6470 ISSN 2662-6489 (electronic) Palgrave Studies in Classical Liberalism ISBN 978-3-030-53389-2 ISBN 978-3-030-53390-8 (eBook) https://doi.org/10.1007/978-3-030-53390-8 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: © Pattadis Walarput/Alamy Stock Photo This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

‘If you can’t annoy somebody, there’s little point in writing.’ Kingsley Amis

Acknowledgments

I would like to thank the following institutions for their support. Sam Houston State University provided both financial support and a year’s sabbatical so that I could complete the manuscript. The University of Wisconsin-Madison took care of many of the logistical problems in facilitating my stay in Madison. The Political Science Department at the University of Wisconsin-Madison supplied me with an office. The Political Theory Workshop at UW allowed me the opportunity to present my research before a group of keen theoretical minds. And, finally, the Center for the Study of Liberal Democracy at UW offered me a generous visiting fellowship and the kind of intellectual stimulation that makes academic life so enjoyable. I also want to thank the following individuals for keeping me in a proper frame of mind. Thanks to Dan and Lynn at the Silver Dollar; to Jess at Mackesey’s; to everyone at Wilson’s; to Steve, Carrie, and Gordie at the Paradise Lounge; and to Troy, Mike, Kyle, Ted, Brent, Joe, Jessie, Jimmy O, Julie, Beamer, Cody, Kevin, both Karens, and everyone that I left out at the Echo Tap. Thanks to all of the people at the CSLD for keeping me on track and focused on the task at hand. Thanks to Kari Zarecki and Scott Mobley for making the trains run on time. Thanks to Kirsten Anderson, Philip Bunn, Jin Jin, Michael Promisel, Noah Stengl, and Nate Gilmore for the scintillating conversations at lunchtime and for commenting on the book.

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ACKNOWLEDGMENTS

And, thanks to the Grand Poobah, Rick Avramenko for making my visit and its successful completion possible. Thanks to those who read all or part of the manuscript, including all of those in the above paragraph affiliated with the CSLD, and, in the Political Science Department at UW, Michelle Schwarze, Howard Schweber, Dan Kapust, and John Zumbrunnen. Thanks also to the non-Badgers who gave me comments, including John Kekes, Stephen Turner, Jack Simmons, Nadia Nedzel, Nicholas Capaldi, Allen Mendenhall, and Leslie Marsh. The mistakes that you all noted have either been corrected, or I just liked them too much to let them go. Finally, thanks to my mother and father who have supported me in every thinkable way throughout my life. And thanks to my daughters Flannery and Julie, who have given me great joy, and to my wife Maria, who, in a world of great complexity, remains a rock of moral certitude. And, finally, thanks to the electric Virgin Mary who kept me in light when darkness was all around.

Praise For Nomocratic Pluralism

“Kenneth McIntyre’s Nomocratic Pluralism: Plural Values, Negative Liberty, and the Rule of Law is an excellent critique of many of the misconceptions spread by analytic philosophy about the nature of morality. It demonstrates, in exquisite detail, why so many analytic philosophers’ work in this area cannot and does not reflect the realities of how people reach moral decisions while living peacefully with each other, nor do they provide any positive guidance for improving society or government. This book provides a coherent and realistic philosophical explanation of why nomocratic pluralism and negative liberty provide the only stable way of enabling peace and tolerance among different moral views in a plural society.” —Nicholas Capaldi, Legendre-Soulé Chair in Business Ethics and Professor of Management, Loyola University New Orleans, USA “Kenneth B. McIntyre’s Nomocratic Pluralism couldn’t come at a more important time. As society fractures, journalism disintegrates into rank sensationalism and faux outrage, and public discourse degenerates into angry threats and shouting matches, the importance of nomocratic order and value pluralism is all the more apparent. We need to accommodate differences and diversity to avoid violence and coercion. McIntyre’s astute reasoning is an important step in that direction.” —Allen Mendenhall, Associate Dean, Thomas Goode Jones School of Law, Faulkner University, USA and Executive Director of the Blackstone & Burke Center for Law & Liberty ix

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PRAISE FOR NOMOCRATIC PLURALISM

“A very useful and original contribution to the study of morality from a philosophical/political theory perspective. McIntyre’s work far outstrips recent scholarship and presents a coherent view of the field and cogent criticisms based on the realities of human interaction and in context with functional and functioning governmental habits. I very much enjoyed reading this book.” —Nadia E. Nedzel, Reilly Family Professor of Law, Southern University Law Center, USA “McIntyre’s incisive study of our current political climate rejects the moral monism that remains the dominant approach to cultural conflict and contributes to the poisonous discourse that characterizes the twenty-first century. Our politics offers the impression of pluralism, to the extent that diverse viewpoints exist, but these views tend to reject the legitimacy of their political rivals. In a move reminiscent of Aristotle’s ethics, McIntyre attempts to carve out a path to real political pluralism and human flourishing through the development of practical reasoning and connoisseurship, which involves not only expertise but also sincere concern for solving cultural problems rather than promoting a single way of life.” —Jack Simmons, Professor of Philosophy, Georgia Southern University, USA

Contents

1

Introduction

1

2

The Critique of Moral Monism

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3

Morality and the Incompatibility and Incommensurability of Values

37

Practical Reason, the Importance of Personal Commitments, Plans, and Projects, and the Minimum Content of Morality

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Varieties of Pluralist Political Theories: Modus Vivendi Pluralism and Egalitarian Pluralism

99

4

5

6

Liberal Pluralism, Negative Liberty, and Toleration

131

7

Negative Liberty, the Rule of Law, and Nomocratic Pluralism

167

Conclusion

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CONTENTS

Bibliography

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Index

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CHAPTER 1

Introduction

Abstract This chapter offers a brief introduction and overview of the various arguments that will be made in the body of the work. It begins with a critique of moral monism, an elaboration of the character of value pluralism, and an examination of the implications of value pluralism for political life, suggesting that a self-conscious value pluralist approach to politics is one way of dealing with plural monisms. This chapter suggests that the acceptance of pluralism involves placing certain limitations on what is an acceptable form of government and what functions governments ought to be legitimately performing. Keywords Nomocratic pluralism · Value pluralism · Negative liberty · The rule of law · Moral monism · Moral pluralism · Isaiah Berlin · Michael Oakeshott · Friedrich Hayek · David Wiggins · Aristotle · Incompatibility of values · Incommensurability of values · Deontology · Consequentialism · Utilitarianism · Moral philosophy

While Western liberal democracies have always been characterized by their political and moral pluralism, this pluralism has been primarily an empirical fact that many have seen as unfortunate. Despite the obvious existence of individuals and groups who hold a variety of moral, social, and political

© The Author(s) 2021 K. B. McIntyre, Nomocratic Pluralism, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-53390-8_1

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values or ideals in these societies, most theorists, and just as importantly, most political partisans and activists have rejected value pluralism, which is the claim that such values or ideals are multiple, various, incommensurable, and often incompatible with each other. Indeed, value pluralism, as a way of understanding the character of moral life, is still foreign to most participants in Western political life. Further, though the mass immigration of non- or anti-liberal non-Western peoples into Western countries has accentuated and amplified the empirical pluralism of Western states, it has done so by introducing new forms of religious and moral monism (i.e., the claim that “authentic” values and ideals are completely consistent, compatible, and commensurable, and that a single decision procedure can be discovered which will solve moral questions or problems) so that the problem that Western political communities now face is not the problem of self-conscious pluralism and its implications for political life but the problem of proliferating plural monisms and their implications for political life. In this book, I offer a brief critique of moral monism, an elaboration of the character of value pluralism, and an examination of the implications of value pluralism for political life, suggesting that a self-conscious value pluralist approach to politics is one way of dealing with plural monisms.1 The book will be a contribution to the ongoing philosophical conversation about value pluralism and its relation to political life. Its uniqueness lies in its insistence that the acceptance of pluralism does involve placing certain limitations both on what is an acceptable form of government, and on what functions governments ought to be legitimately performing.

1 P.F. Strawson provides a concise statement of the general sentiment from which this book arises. He writes that, “What will be the attitude of one who experiences sympathy for a variety of conflicting ideals of life? It seems that he will be most at home in a liberal society, in a society in which there are variant moral environments but in which no ideal endeavors to engross, and determine the character of, the common morality. He will not argue in favor of such a society that it gives the best chance for the truth about life to prevail, for he will not consistently believe that there is such a thing as the truth about life. Nor will he argue in its favor that it has the best chance of producing a harmonious kingdom of ends, for he will not think of ends as necessarily capable of being harmonized. He will simply welcome the ethical diversity which the society makes possible, and in proportion as he values that diversity he will note that he is the natural, though perhaps sympathetic, enemy of all those whose single intense vision of the ends of life drives them to try to make the requirements of the ideal coextensive with those of common social morality.” P.F. Strawson, “Social Morality and Individual Ideal,” Freedom and Resentment and Other Essays (London: Routledge, 2008) 49.

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The practice of moral philosophy has been marked as much by attempts to solve moral problems as philosophical ones. These attempts have consisted of the promulgation of various decision procedures or hierarchies of value which offer an answer to the question, what should I or we do? Moral monism can be understood as the notion that some singular, unique, universal, and timeless standard can be found that would answer all moral questions. In recent years, a few moral philosophers have begun to question the viability of moral monism as a philosophical project.2 These writers have claimed that the goals of moral monism are unreachable for a variety of reasons, including the following: moral/practical problems cannot be resolved by philosophical means; the scope of morality is limited, and moral considerations do not always trump other considerations; and even if the scope of morality is unlimited or if it is understood to trump other considerations, it is unlikely that any systematic decision procedure will cover any and every situation. Value pluralism, which is the term that has come to describe the position of these writers, is characterized by the claim that values (including moral ones) are both incompatible (i.e., there are multiple things that humans value and that are objectively valuable, and these things do not form a coherent whole but conflict with each other) and incommensurable (i.e., that values are not completely comparable according to a single metric, such as pleasure or preference satisfaction). If, as I shall maintain, value pluralism is an adequate way of understanding the nature of the practical lives of human beings, what implications does an acceptance of it carry for political institutions?

2 See, among others, Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986); Michael Stocker, Plural and Conflicting Values (Oxford: Clarendon Press, 1990); David L. Norton, Personal Destinies: A Philosophy of Ethical Individualism (Princeton: Princeton University Press, 1976); Martha C. Nussbaum, The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy, Updated Edition (Cambridge: Cambridge University Press, 2001); Annette Baier, Postures of the Mind: Essays on Mind and Morals (Minneapolis, MN: The University of Minnesota Press, 1985); Edmund L. Pincoffs, Quandaries and Virtues: Against Reductivism in Ethics (Lawrence, KS: The University Press of Kansas, 1986); Stuart Hampshire, Innocence and Experience (Cambridge, MA: Harvard University Press, 1989); Isaiah Berlin, “Two Concepts of Liberty,” Liberty, Henry Hardy, ed. (Oxford: Oxford University Press, 2002) 166–217; John Kekes, The Morality of Pluralism (Princeton: Princeton University Press, 1993); Charles Larmore, Patterns of Moral Complexity (Cambridge: Cambridge University Press, 1987); and Bernard Williams, Ethics and the Limits of Philosophy (Cambridge, MA: Harvard University Press, 1985).

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There are several ways that value pluralists have approached politics, and I will examine a few of them before offering my own account of what I will call the nomocratic pluralist state. Some pluralists, like John Gray, claim that the acceptance of the validity of value pluralism offers little or no direction concerning specific political values or institutions. These modus vivendi pluralists reject the traditional connection of value pluralism with liberalism, in the most capacious sense of that term, and, thus, reject the primacy of liberty altogether, considering political life to be a way to manage empirical pluralism or plural monisms. A second approach, manifest in the work of Thomas Nagel, claims that equality ought to be the primary political value for pluralists, and such egalitarians conceive of the state as a managerial enterprise for achieving material equality. A third approach, exemplified in the work of Isaiah Berlin, argues that liberty, especially negative liberty, is one of the most important political values associated with value pluralism, but it is merely one value among others. This generic liberal pluralism can also be divided into, on the one hand welfare liberal pluralism, which can be seen in the work of Joseph Raz, and which emphasizes the achievement of a strong version of individual autonomy as the goal of the pluralist state, thus justifying significant redistributionist welfare policies. And, on the other hand, classical liberal pluralism, which can be seen in the work of thinkers like Gerald Gaus, which claims that self-conscious value pluralists would place a rebuttable priority on negative liberty, because such liberty allows individuals to fulfill their commitments and obligations, and pursue their own particular conceptions of a good human life. I will argue that classical liberal pluralists are substantially correct, and that value pluralists would reasonably place a high priority on negative liberty. Further, I will claim that a species of liberal pluralism which I will call nomocratic pluralism offers the best institutional instantiation of the defense of negative liberty. The nomocratic pluralist state would reject positive liberty as a political value, and place a high, but not absolute, priority on negative liberty as a political value. Finally, the nomocratic state under the rule of law, with law understood as noninstrumental, impersonal, and general rules which condition but do not prescribe the choices of citizens with their own commitments, plans, and projects, posits a third concept of liberty. Liberty under the rule of law consists of the fact that the rule of law as understood here does not require individuals to take specific substantive actions, but only obligates them to act

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according to a formal condition or conditions while making substantive decisions and/or taking substantive actions.3 I will conclude this first introductory chapter by offering an overview of the arguments in each subsequent chapter. In Chapter 2, I offer a critique of moral monism, suggesting that the aspirations of moral monism are unreachable for a variety of reasons. Most importantly, moral monists fail to offer an adequate single decision procedure which would resolve all moral conflicts, and, since the production of such a decision procedure is the purpose of monistic moral philosophies, the failure to produce a convincing version of one is fatal to the monistic project. In the first section of the chapter, I provide a brief outline of the typical characteristics of moral monism. These include the generation of a single decision procedure (SDP) which is supposed to provide a universal, rational, general, and impersonal solution to all moral problems or conflicts; a hierarchy of values which complements the SDP; a rejection of the distinction between theoretical and practical reason; and the claim that moral considerations always override any other considerations. In the remaining sections of Chapter 2, I examine the work of Alan Gewirth and R. M. Hare, representatives respectively of the two most prominent and influential contemporary versions of moral monism, deontology, and utilitarianism. While offering an exposition of Gewirth’s and Hare’s theories as examples of moral monism, I will also suggest why moral monism is an inadequate schema within which to understand the moral lives of human beings. In Chapter 3, I consider the sources of moral complexity and conflict, and offer the first part of my account of value pluralism. Like other versions of value pluralism, mine includes a discussion of the nature and variety of human values and valuation, and also a series of claims about the relationship between or among values. I argue that values are plural, that there are nonmoral values as well as moral ones, that these values often conflict, and that they are often incommensurable. For example, there are different moral or value systems in the world and in world history (e.g., Homeric honor, the Victorian gentleman, Medieval chivalry, contemporary liberalism), and every one of them is necessarily incomplete 3 As will be apparent to readers familiar with the following thinkers, my development of a theory of the nomocratic pluralist state owes much to the work of Gerald Gaus, Erick Mack, Loren Lomasky, Friedrich Hayek, Isaiah Berlin, John Kekes, Lon Fuller, and Michael Oakeshott.

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in that none have realized, nor possibly can realize perfect human goodness, and each offers a set of values not reducible to any other; second, that within value systems, there is inevitable conflict between values (e.g., liberty v equality, love v independence, justice v mercy), and that such conflict occurs because these values are incompatible and incommensurable (i.e., they are not reducible to a single metric); and, third, that such conflicts are inevitable even within the moral life of individuals, who have to make choices among multiple forms of the good life. Thus, there is no one single hierarchical value or principle that rules them all, but a variety of valuable choices, both moral and nonmoral, and a variety of morally acceptable forms of life. In Chapter 4, I examine the nature of practical reason, the centrality of personal or subjective commitments and purposes to choices about good human lives, and the minimum moral content of good human lives. The conclusion that human values are often incompatible and incommensurable suggests that a convincing account of value pluralism requires a different conception of practical reason than the conceptions offered by monistic moralities. Proponents of monistic conceptions of practical reason tend to model these conceptions of reason on the kind of reasoning associated with the natural sciences and mathematics. Such conceptions posit that reasoning is a unity, so practical reasoning, like all reasoning is abstract, universal, objective, and impersonal. This kind of scientistic rationalism conflates practical reason and theoretical/scientific reason, thus, misconstruing the moral and nonmoral values of human beings, since these values are not abstractions, but are instead complex and often particular to specific individuals. Nonetheless, if a comparison between values, possible actions, and purposes is impossible, that suggests that there can be no rational choice made concerning values, purposes, or actions. The version of practical reason presented in Chapter 4 involves a combination of the traditional distinction between reasoning about things subject to change and things not subject to change, a neo-Aristotelian conception of virtues and skills, and an emphasis on the particularistic or subjective character of valuation, both moral and nonmoral. In Chapter 5, I begin my exploration of the implications of value pluralism for political theory and practice. I suggest that two of the most important are that, for those who accept value pluralism, the primary political value will be the kind of negative liberty that allows individuals to fulfill their commitments and pursue their projects, and the primary political virtue will be tolerance of the commitments and projects of

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others. However, before elaborating these claims, I examine the way that other value pluralists have treated political questions, focusing on how they conceive of the place of liberty in a pluralist state. First, there are modus vivendi pluralists who reject the notion that the acceptance of pluralism suggests that negative liberty would be the primary priority of a pluralist community, and, indeed, are skeptical of the notion that the acceptance of pluralism necessarily entails any specific political regime or set of institutions. Second, there are egalitarian pluralists who reject the notion that negative liberty would be the most reasonable priority of a pluralist community, instead insisting that political, legal, and material equality is central to the adequate use of liberty and the promotion of pluralism, and, thus, ought to be the primary priority of a pluralist community. I examine these claims through the work of prominent exponents of each of them, with John Gray as the modus vivendi pluralist and Thomas Nagel as the egalitarian pluralist. In Chapter 6, I discuss two varieties of liberal pluralism: welfare liberal pluralism and classical liberal pluralism. I argue that, between welfare liberal pluralism, with its focus on personal autonomy and positive liberty, and classical liberal pluralism, with its focus on negative liberty and toleration, self-conscious value pluralists would reasonably prefer the latter. Welfare liberal pluralists place too much emphasis on personal autonomy as a pre-political value, and thus also claim that individuals have positive liberty concerns, which necessarily involve paternalistic and coercive governmental measures which interfere with the commitments, plans, and projects of their fellow citizens. Value pluralists would reject the notion that any pre-political value overrides all others, and instead reasonably conclude that the protection and promotion of negative liberty ought to be considered as the rebuttable first priority of an authentically pluralist political community, and that positive liberty concerns with values like autonomy are best left to the individuals in the community themselves. The public morality of a political/legal community composed of self-conscious value pluralists would consider the protection of negative liberty as the first responsibility and the differentia of a pluralist government. Such a public morality consists of the rules that constitute what counts as peaceful coexistence, including general commitments to tolerance of, and forbearance and impartiality toward the private morality of others, which citizens owe to each other as citizens and which the government owes to its citizens as citizens. As a complement to negative liberty as the unique responsibility of a self-conscious pluralist government, the

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first virtue and the differentia of the public morality of a pluralist community would be toleration of others, especially toleration of what others choose to do with their liberty. In Chapter 7, I complete my treatment of the implications of value pluralism for political theory and practice. I offer a specification of liberal pluralism which deals with the institutionalization of the protection of negative liberty by law. I refer to this further specification of liberal pluralism as nomocratic pluralism. In a nomocratic pluralist state, the institutional manifestation of the protection of negative liberty is a regime governed by the rule of law. I develop the conception of the rule of law in connection with the specific type of political community that would be acceptable to self-conscious value pluralists. As suggested in Chapters 5 and 6, pluralists would reject any notion that the political community ought to be understood as a collective and cooperative arrangement in pursuit of a shared substantive purpose or set of purposes. Instead, the political community is best understood as a means of peaceful coexistence among people with their own lives to live. The role of the government is to maintain the articles of peaceful coexistence, which are noninstrumental rules which do not command specific performances but, instead, condition the self-chosen actions of individual citizens. I call this regime a nomocratic pluralist state under the rule of law. Thus, the type of law connected with this sort of regime is limited to laws which are noninstrumental and constitute the conditions in which individuals pursue their own purposes. The institutional instantiation of the rule of law provides an arena of peaceful (more or less) coexistence (more or less) for people who do not share a single substantive purpose and who do not necessarily (but may) share beliefs about or commitments to a single version of what makes for a good human life. This conception of the state is the most reasonable way to address both the empirical reality of pluralism or diversity, and it is also what self-conscious value pluralists would recognize as the character of a pluralist state. Finally, the nomocratic pluralist state preserves the negative liberty of its citizens, while also incorporating a further type of liberty, which is liberty under noninstrumental rules.

CHAPTER 2

The Critique of Moral Monism

Abstract This chapter elaborates an extensive critique of moral monism, suggesting that the aspirations of moral monism are unreachable for a variety of reasons. Most importantly, moral monists fail to offer an adequate single decision procedure (SDP) which would resolve all moral conflicts, and, since the production of such a decision procedure is the purpose of monistic moral philosophies, the failure to produce a convincing version of one is fatal to the monistic project. It provides a brief outline of the typical characteristics of moral monism. These include the generation of a SDP which is supposed to provide a universal, rational, general, and impersonal solution to all moral problems or conflicts; a hierarchy of values which complements the SDP; a rejection of the distinction between theoretical and practical reason; and the claim that moral considerations always override any other considerations. It also examines the work of Alan Gewirth and R.M. Hare, representatives respectively of the two most prominent and influential contemporary versions of moral monism, deontology, and utilitarianism. Keywords Moral monism · Single Decision Procedure · Theoretical reason · Practical reason · Alan Gewirth · R.M. Hare · John Rawls · The Principle of Generic Consistency · Two-level utilitarianism · “Dirty hands” problem · Rule utilitarianism · Act utilitarianism · “Government house” utilitarianism

© The Author(s) 2021 K. B. McIntyre, Nomocratic Pluralism, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-53390-8_2

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In this chapter, I offer a critique of moral monism from the perspective of value or moral pluralism, suggesting that the aspirations of moral monism are unreachable for a variety of reasons. Most importantly, moral monists fail to offer an adequate single decision procedure (SDP) which would resolve all moral conflicts, and, since the production of such a decision procedure is the purpose of monistic moral philosophies, the failure to produce a convincing version of one is fatal to the monistic project.1 In the first section of this chapter, I provide a brief outline of the typical characteristics of moral monism. These include the generation of a SDP which is supposed to provide a universal, rational, general, and impersonal solution to all moral problems or conflicts; a hierarchy of values which complements the SDP; a rejection of the distinction between theoretical and practical reason; and the claim that moral considerations always override any other considerations.2 The two most prominent and influential contemporary versions of moral monism are deontology and utilitarianism, and, in the second and third sections, I examine the work of Alan Gewirth and R.M. Hare. Gewirth offers an exemplary version of deontological moral theorizing, while Hare provides a distinctive utilitarian version of moral philosophy. I will not be concerned so much with the particularities of each thinker’s work but with their respective moral theories as representative of the general character of moral monism.3 However, it will sometimes be relevant to bring out the unique characteristics of Gewirth’s or Hare’s. Gewirth’s moral philosophy is a cogent and comprehensible

1 H.A. Prichard was one of the first contemporary moral philosophers to offer a critique of monism’s commitment to the creation of a SDP. See H.A. Prichard, “Does Moral Philosophy Rest on a Mistake?” Mind 21 (1912) 21−37. 2 In noting the centrality of a SDP for monistic moral theories, I am not claiming that the SDP has to be simple, but merely unified. For example, Rawls’ conception of justice has three elements, but they are hierarchically related and are intended to lead to a single objective result. R.M. Hare’s two-level utilitarianism is also complex, but intended to resolve all moral questions in an objective and impersonal way. 3 Both Gewirth’s and Hare’s moral theories have been the subject of compendious

commentary. For an overview of the literature dealing with Gewirth and with Hare, see Edward Regis, Jr., ed., Gewirth’s Ethical Rationalism: Critical Essays with a Reply by Alan Gewirth (Chicago: The University of Chicago Press, 1984) and Douglas Seanor and N. Fotion, eds., Hare and Critics: Essays on “Moral Thinking ” (Oxford: Clarendon Press, 1988).

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reformulation of Kantian deontology, while Hare’s is a complex twolevel utilitarianism which attempts to combine rule and act utilitarianism.4 While offering an exposition of Gewirth’s and Hare’s theories as examples of moral monism, I will also suggest why moral monism is an inadequate schema within which to understand the moral lives of human beings.

1

Moral Monism

One of the enduring aspirations of Western moral philosophers has been the achievement of an account of some sort which would explain the nature and solution of moral problems. From the time of Plato, the example of mathematics has tempted thinkers to believe that all problems, including moral ones, might eventually be solved, if only the correct method were discovered. This notion that moral problems can be resolved in a quasi-mathematical, or, more recently, in a quasi-scientific, fashion has been termed “moral monism,” and it characterizes a great deal of modern moral philosophy.5 Moral monists, like other philosophical monists, view disagreement or conflict as a result of irrationality or ignorance. Of course, in some areas such as mathematics or the natural sciences, it might be plausibly maintained that there are correct resolutions to problems which result in conclusions acknowledged by all practitioners. Moral monists claim that, like disagreements in math or science, moral disagreements or conflicts can ultimately be eliminated, if only a proper method can be discovered for approaching moral conflicts. The two most prominent modern representatives of moral monism are Kant, who reduced moral judgment to the consideration of a single rule which he called the categorical imperative, and Bentham, who insisted 4 I have focused my attention on the most comprehensive statement offered by each writer of his moral philosophy. For Gewirth, that is Alan Gewirth, Reason and Morality (Chicago: University of Chicago Press, 1978), and for Hare, that is R.M. Hare, Moral Thinking: Its Levels, Method and Point (Clarendon Press: Oxford, 1981). Henceforth, references to each of these works will be as follows: Gewirth, RM , and Hare, MT . 5 I will not be addressing questions concerning the genesis or etiology of modern moral monism, though there are numerous intellectual historians who have written on this topic. Some have pointed to the rationalism of Descartes and Bacon, some to the secularization of Christianity and the search for new foundation of moral life, and some to the profound success of natural sciences in explaining and manipulating the natural world. For a variety of explanations of the rationalistic character of modern philosophy generally and modern moral philosophy specifically, see Gene Callahan and Kenneth B. McIntyre, eds., Critics of Enlightenment Rationalism (New York: Palgrave Macmillen, 2020).

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that moral judgments are merely calculations concerning the amount of pleasure and pain created by actions. Their works on moral philosophy have spawned innumerable expounders, imitators, and appropriators who have created their own versions of moral monism. These moral theorists have insisted that moral conflict is not something inherent to the human condition, but instead is the result of a lack of individual or collective rationality, which manifests itself in both immoral behavior and unjust institutions. For these thinkers, the solution to moral dilemmas is to be found in the discovery and promulgation of a SDP which would enable individuals and communities to make correct moral judgments and create morally acceptable institutions.6 The SDPs produced by various modern moral theorists differ in a great many ways, which suggests that the kind of rationality involved in producing and understanding any single SDP is not necessarily as selfevidently universal as the producers of these theories claim. Indeed, if the SDP is supposed to be demonstrable to all rational human beings in the way that mathematical and scientific proofs are, then disagreement about the SDP is a sign of a serious philosophical problem, and, since there has been little agreement about the various SDPs proposed over time and just as little agreement about the applications of the various SDPs themselves, such disagreement might give a serious thinker pause concerning the possibility of creating or discovering such a method. Nonetheless, these procedures share several characteristics. First, the SDP is universal, meaning that it applies in all situations, has always applied, and will always apply. In this way, one might say that moral theorists do not create the SDP so much as discover it in a process of logical reasoning which is available to all human beings. For example, John Rawls claims that by a simple act of the rational imagination, each individual would necessarily arrive at the exact same conception of justice as Rawls himself.7 In his original iteration of the theory of justice, Rawls suggests that his argument applies to every individual everywhere and everywhen. Second, the SDP is general, impartial, abstract, and impersonal. It applies to all human beings solely 6 This is one of the central differences between the classical moral monism of Plato, who relied on the esoteric knowledge of philosophers to make moral decisions, and modern moral monism, which presents the decision procedure publicly, so that all can make moral decisions. 7 John Rawls, A Theory of Justice, Revised Edition (Cambridge, MA: Belknap Press, 1999). Rawls elaborates his theory of justice in part one, pages 3−168.

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as human beings, and cannot take into account individual characteristics, commitments, life plans, etc. So, the utilitarian theorist Peter Singer can argue, without any apparent qualms, in favor of euthanizing large numbers based upon a utilitarian calculus about their sentience.8 In terms of values, SDPs generally explain “value” in terms of one all-encompassing value, such as utility or preference satisfaction. In those SDPs that do not reduce all values to one single value, the SDP produces a hierarchy of values which is used in considerations of moral conflict (e.g., certain types of duties override other types of duties and duties override any other consideration). Most contemporary moral monists also reject the distinction between theoretical and practical reason, instead, subsuming rationality under the category of a sort of quasi-mathematical ratiocination. Indeed, for utilitarians, the notion that pains and pleasures or preference satisfactions can be accurately measured and compared in a fashion similar to that of an accountant’s double entry bookkeeping is central to the effectiveness of the whole moral theory.9 In Gilbert Ryle’s terminology, the more extreme monists reduce “knowing how” to a particular species of “knowing that,” and maintain that rationality is not a matter of degree but a capacity that is either possessed or not.10 Combined with the features of universality and generality, this form of rationalism makes not only contemporary moral judgments amenable to facile calculation, but also applies to moral judgments and social institutions made in the past or projected into the future. Further, the SDP, by its very nature, focuses the attention of moral actors solely on what Michael Stocker has called action-guiding act evaluations.11 For moral monists, moral evaluations are prescriptive, 8 Peter Singer, Practical Ethics, Third Edition (Cambridge: Cambridge University Press,

2011) 123−190. Singer does excuse himself from the exercise of such calculations when it comes to his own family, however. For an account of Singer’s treatment of his ill mother, where he admits that “perhaps [utilitarian moral judgment] is more difficult than I thought before, because it is different when it’s your mother,” see Michael Specter, “The Dangerous Philosopher,” The New Yorker (6 September 1999) 55. 9 Mill’s version of utilitarianism is an exception, although, in introducing a qualitative

distinction between higher and lower pleasures, Mill undermines the nature of his theory as utilitarian. 10 On the difference between “knowing how” and “knowing that,” see Gilbert Ryle, The Concept of Mind (Chicago: The University of Chicago Press, 1949) 25−61. 11 Michael Stocker, Plural and Conflicting Values (Oxford: Clarendon Press, 1990) 10−13.

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and thus connected solely with questions about individual actions, and not with questions about the goodness or badness of individuals as individuals. This focus leads moral monists to consider action almost solely as occurring in a vacuum, abstracted from actual human situations.12 So, for example, Alan Gewirth describes actions as acts taken by individuals combined with the effects on the “recipients” of those acts. The actors and recipients are given no human characteristics other than deductive and inductive reason. Finally, the morality produced by the SDP is generally, but not always, conceived as a set of overriding rules derived from the SDP itself. These moral rules or principles trump all other considerations concerning human actions, including personal relations, personal preferences, personal projects, and nonmoral values (e.g., aesthetic, scientific, religious, etc.) The argument that moral considerations always override any other sorts of considerations is more often than not an argument from the definition of morality provided by the individual monist, but it is closely connected with the universal, general, impartial, and impersonal characteristics of the SDP. In essence, the whole purpose of the SDP is to eliminate conflict from human social life, and, where conflict remains, it is understood by moral monists to be a sign of individual or collective irrationality, or a sign that the SDP itself is not wholly adequate.

2

Gewirth’s Principle of Generic Consistency

The two most influential forms of modern moral philosophy are deontology and utilitarianism, but neither deontology nor utilitarianism needs necessarily be monistic.13 Thus, I will not be considering in a comprehensive way the great variety of deontological theories or variations on the theme of utility. However, since most are monistic, I will focus on specific examples of these two theories as exemplifications of moral monism. In this section, I examine Alan Gewirth’s moral philosophy as an example of 12 Pincoffs calls this way of approaching the questions of ethical life “quandary ethics” and claims that quandary ethics is almost inevitably reductivist. Edmund L. Pincoffs, Quandaries and Virtues: Against Reductivism in Ethics (Lawrence, KS: The University Press of Kansas, 1986) 13−52. 13 For example, Thomas Nagel’s ethical writing manifest a deep commitment to deontological ethics while also recognizing that there are multiple rules, principles, and duties that often conflict with each other. Thomas Nagel, The View from Nowhere (Oxford: Oxford University Press, 1986).

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deontological moral monism. The term “deontology” refers to the notion that morality consists of duties defined by rules or principles which are indifferent both to the individuals involved in the potential moral action and the particular circumstances of the potential action. Deontological moral theories generally attempt to derive the overarching duty itself from some attribute considered central to being human, like rationality or the capacity for action. The central presupposition of Gewirth’s work, and this presupposition is common to all versions of moral monism, is that, if a SDP that will resolve all moral disagreements cannot be found, then the moral world is a world of subjectivity, arbitrariness, and relativism. Gewirth makes this quite plain in his preface to Reason and Morality when he writes that: The most important and difficult problem of philosophical ethics is whether a substantial moral principle can be rationally justified. On the answer depends the possibility of construing the difference between moral right and wrong as objective and universal and hence as knowable by moral judgments on which all persons who use rational methods must agree…[S]o long as the rightness or correctness of the principle itself on which the whole system ultimately rests is not established, such a procedure still leaves the system without any warrant of its rightness or correctness.14

For many, this insistence on a first principle from which all conclusions flow might seem to be perfectly reasonable. Whether we arrive at the principle through induction or through some version of a Kantian a priori, such a principle would establish a foundation upon which to build a grand ethical edifice, and such an edifice is envisioned in Gewirth’s theory. However, Gewirth’s extravagant claim that a moral system without a rationally justified first principle is “without any warrant” seems unnecessary. Indeed, if one considers other sorts of practical endeavors, the necessity of finding a rational foundation in order to avoid pure subjectivity lessens, and, perhaps, disappears. For example, does a person need to hold a rational foundational principle concerning the nature of comedy in order to make reasonable judgments about what is humorous? Do speakers of a language need to acknowledge a common theory of linguistics to speak fluently and correctly in that language? The fact that individuals sometimes disagree about what is funny or that speakers of a 14 Gewirth, RM , ix, x.

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language sometimes disagree about usage and grammar does not usually evoke a demand for the discovery of a single principle which will decide all issues of humorousness or linguistic rectitude. Thus, one obvious reason for rejecting moral monism is that most versions of monism are committed to a false dichotomy between following an absolute moral principle and total arbitrariness in moral decision-making.15 Nonetheless, this Manichean presupposition lies at the heart of the moral monist’s insistence that a SDP must be at the center of any valid moral philosophy. Gewirth moves quickly from his statement of the central problem in moral philosophy to his description of the proper solution. That solution would consist of a “supreme moral principle [which would] provide the justification of all correct moral judgments and rules.”16 Gewirth, here, provides a straightforward definition of an SDP, and it is through a derivation from the SDP itself that moral judgments, duties, principles, rules, and values take shape. Thus, one of the most obvious reasons that moral monists do not take questions of the incompatibility of duties or the incommensurability of values seriously is that the very definition of the SDP rules them out of consideration. Many deontological theorists begin with an examination of the character of human reason and human will, and from those characteristics derive a universal law which determines the moral rectitude of both individual actions and of general moral principles. Instead of initially focusing his attention on rationality and will, Gewirth examines the character of human action, and from it derives his version of the SDP. First, however, Gewirth offers a definition of morality in which moral judgments are judgments about the effects that an individual’s actions will have on the lives of other human beings. He defines morality as “a set of categorically obligatory requirements for action that are addressed at least in part to every actual or prospective agent, and that are concerned with furthering

15 Renford Banbrough offers a similar critique by suggesting that physicists, economists, lawyers, and historians all make objective judgments within their respective fields without necessarily agreeing on a single foundational principle of physics, economics, law, or history. Renford Bambrough, “The Roots of Moral Reason,” Gewirth’s Ethical Rationalism: Critical Essays with a Reply by Alan Gewirth, Edward Regis, Jr., ed. (Chicago: The University of Chicago Press, 1984) 39−51. 16 Gewirth, RM , 7.

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the interests, especially the most important interests, of persons or recipients other than or in addition to the agent.”17 Morality, for Gewirth, is primarily social, and, thus, not concerned with the self-interest or preference of individual actors, but with the interests of those affected by actions, and, as an aspect of this definition, Gewirth assumes that moral judgments are related to actions that can be abstracted from the flow and circumstance in which they take place. This approach to morality precludes, for the most part, questions of nonaction guiding evaluations, such as evaluations of individual character or considerations of the relevance of individual commitments to moral judgments. Like other forms of moral monism, Gewirth’s definition also stipulates that moral considerations always override any other consideration when making judgments about actions. He avers that “morality…purports to set, for everyone’s conduct, requirements that take precedence over all other methods of guiding action.”18 For Gewirth, this aspect of morality appears to be definitional, and he does not bother to consider other conceptions of morality in which moral considerations are merely one type of consideration among many.19 That is to say, insofar as any action affects other people, the actor must consider the moral implications of her action as trumps against any other practical or aesthetic consideration. Further, Gewirth argues that, in order to avoid the conclusion that morality is merely subjective, an objective decision procedure must be created or discovered which would solve all moral problems. He writes that this “supreme moral principle…serves to show or establish which particular moral judgments and general rules are right and which are wrong…Since to justify something is to show or establish its rightness or correctness, the supreme moral principle provides the justification of all correct moral judgments and rules.”20 This is the one principle to

17 Gewirth, RM , 1. 18 Gewirth, RM , 1. 19 Some of my observations about the deficiencies of Gewirth’s version of moral monism echo those of Marcus Singer, who noted that “one possible morality—or meaning of “morality”—is one in which it is not overriding or supremely authoritative, but just one institution among others.” See Marcus G. Singer, “Gewirth’s Ethical Monism,” Gewirth’s Ethical Rationalism: Critical Essays with a Reply by Alan Gewirth, Edward Regis, Jr., ed. (Chicago: The University of Chicago Press, 1984) 25. 20 Gewirth, RM , 7.

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rule them all which is purported to provide answers to all moral questions. Since the realm of the nonmoral is quite exiguous in Gewirth’s theory, being limited to purely self-regarding actions, his version of the SDP will be the rule that rules in almost all practical situations. Morality, for Gewirth, is the practice of practices, which is also connected with its overriding character. In terms of his moral monism, the significance of Gewirth’s stipulative definition of morality lies in this claim that moral considerations are always overriding. However, Gewirth also connects his assertion concerning the overridingness of morality with his derivation of a primary moral rule from the concept of human action. He asserts that a rational consideration of the concept of action will provide and justify a SDP, which he will call the principle of generic consistency (PGC). He notes that the “content of morality is to be found in action and its generic features. For all moral precepts…deal directly or indirectly with how persons ought to act.”21 These generic features of action are to be found in any human action that has ever taken place, that is currently taking place, or that can ever take place, and the two features, according to Gewirth, are voluntariness and purposiveness. Gewirth defines the two as follows: By an action’s being voluntary or free I mean that its performance is under the agent’s control in that he unforcedly chooses to act as he does, knowing the relevant proximate circumstances of his action. By an act’s being purposive or intentional I mean that the agent acts for some end or purpose that constitutes his reason for acting.22

Gewirth suggests that there are various possible situations that limit or eliminate the voluntariness of human actions, including physical compulsion, being psychologically coerced into making unpleasant choices, and being indirectly coerced. It would be normal to accept that someone who was thrown off a cliff was not engaged in action. However, it is an odd notion that someone who handed over money to an armed robber was not engaged in action. It is certainly the case that there should be no moral disapproval accompanying the description of a victim of a robbery, but to say that the victim didn’t act at all because her actions were not

21 Gewirth, RM , 25. 22 Gewirth, RM , 27.

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completely voluntary seems a strange restriction of the term “action.”23 Further, Gewirth claims that humans are not acting voluntarily if they are not fully informed of the situations in which they act. He avers that “‘choice’ connotes antecedent, informed deliberation between alternatives and a reasoned decision based on this deliberation.”24 Indeed, according to Gewirth, choices which are compelled, undesirable, and/or taken under threat are not really choices at all. Other than the presence of some sort of physical threat, however, many if not most human choices take place under circumstances in which a choice must be made, and in which all available options are less than desirable. The “dirty hands” phenomena exemplified in the dilemma of Sophie in Sophie’s Choice in which she is forced to choose which of her children is to be killed in a concentration camp is an extreme example, but, if we followed Gewirth, we would be forced to rename the novel. Indeed, Gewirth’s various considerations severely restrict what can be called voluntary behavior to such an extent that moral actions seem to be relatively rare or even nonexistent. As already suggested, in almost every judgment or action, there is a certain amount of ignorance, a certain amount of coercion because of circumstance, and, in many situations, choice is forced upon us. Gewirth claims that the second generic aspect of action consists of its being purposive. He writes that “in every action an agent acts more or less reflectively in accordance with his wants…[and] the agent necessarily regards his purposes as good and hence makes an implicit value judgment about them.”25 Thus, an agent acts not merely with some sort of external purpose, but specifically with a purpose that she considers as good in some way. In describing purposiveness, Gewirth often conflates doing something on purpose with doing something intentionally, but one can do something intentionally (e.g., step on a bug) without having any real purpose at all. Indeed, it is certainly not the case that everything that humans do involves some external purpose.26 For example, when

23 J.L. Austin notes that “questions of whether someone was responsible for this or that are prior to questions of freedom.” J.L. Austin, Philosophical Papers, 3rd ed. (Oxford: Clarendon Press, 1979) 273. 24 Gewirth, RM , 31. 25 Gewirth, RM , 39, 41. 26 For an illuminating discussion of the difference between doing something deliberately,

intentionally, and purposively, see Austin, Philosophical Papers, 273−279.

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questioned by police in 1979 as to why she opened fire on a schoolyard killing two and injuring eight, Brenda Ann Spencer answered, “I don’t like Mondays.” As Gewirth notes, people sometimes do things for intrinsic purposes and not extrinsic ones, and, perhaps, Ms. Spencer just enjoyed target practice, but there is an unconvincing circularity in merely defining action in terms of a perceived good for the actor. Individuals often acknowledge that they want things and have purposes that they recognize are not good. Nonetheless, Gewirth insists that human actions always concern purposes which humans maintain as normative goods. These goods, which can be both material and connected with capacities or abilities, comprise what Gewirth calls well-being.27 Since human beings desire not only to act, but to be successful actors, Gewirth claims that well-being itself is required as a generic aspect of action. It is reasonable to suggest that moral judgments ought to be directly connected to judgments of responsibility, which will necessarily involve questions concerning the freedom of the individual whose action is being judged. It is also reasonable to note that most human actions are purposive and are directed toward something considered good by the actor. However, neither are necessary conditions of calling something an action. Further, although most human beings certainly desire well-being, wellbeing is not a necessary condition of either freedom or purposiveness. In order to maintain his universalist claims, which are necessary if he is to construct successfully a universally applicable decision procedure, Gewirth must insist not only that the generic features (i.e., voluntariness, purposiveness, and well-being) are a part of every action, but that they are directly connected to moral judgments. In order to make this connection, Gewirth argues that it is rationally required that, if one accepts that the generic features of action are such as he has maintained that they are, one must claim these generic features as rights. He maintains that “since the agent regards as necessary goods the freedom and well-being that constitute the generic features of his successful action, he logically must also hold that he has rights to these generic features, and he implicitly makes a corresponding rights-claim.”28 In what is generally considered the most philosophically questionable move in his moral theory, Gewirth

27 Gewirth claims that there are different levels of goods, but these distinctions are not necessarily central to the monistic character of his argument. See Gewirth, RM , 53−62. 28 Gewirth, RM , 63.

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claims that human needs are the basis of rights claims and he specifies what these generic rights are.29 They include: the right to freedom, consisting in noncoercion or noninterference by other persons, so that one’s behavior is controlled by one’s own unforced choice; and the right to well-being [including the capacities to act successfully],…so that one has the general abilities and conditions required for maintaining and obtaining what one regards as goods.30

By claiming the right to both freedom and well-being, Gewirth introduces one of the primary sources of moral conflict internal to his theory. A person’s freedom can harm her well-being (e.g., Val chooses to gamble and loses all her money), and a person’s well-being can undermine her freedom (e.g., Val’s wealth allows her to pay others to do everything for her to the extent that she becomes less than capable of making choices of her own). The movement from a negative liberty claim (i.e., noncoercion and noninterference) to a positive liberty claim (i.e., the right to wellbeing) without any indication as to which rights are overriding necessarily creates a difficulty which will persist into Gewirth’s decision procedure. If the positive rights claims override the negative rights claims, then there will necessarily be consistent violations of the negative liberty claims, and, if the negative rights claims trump the positive, then the well-being of individuals will not necessarily be secured. Since the language of rights does not make much sense outside of a community in which rights can be claimed, Gewirth argues that the rights claims must be generalized to all human beings. He states that: to avoid contradicting himself, the agent must admit that other persons have the same rights to freedom and well-being against himself as he here

29 His derivation of rights from needs has been widely criticized. See, among others, Alasdair MacIntyre, After Virtue, Third Edition (Notre Dame, IN: University of Notre Dame Press, 2007) 66−70, R.B. Brandt, “The Future of Ethics,” Noûs 15 (1981) 31−40, Arthur Danto, “Comment on Gewirth: Constructing an Epistemology of Human Rights: A Pseudo Problem?”, Social Philosophy & Policy 1 (1984) 25−30, and R.M. Hare, “Do Agents Have to be Moralists,” Edward Regis, Jr., ed., Gewirth’s Ethical Rationalism: Critical Essays with a Reply by Alan Gewirth (Chicago: The University of Chicago Press, 1984) 52−58. 30 Gewirth, RM , 64.

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claims against them. In this way, the initial prudential ground of his rightclaim will logically lead him to recognize a moral ground for the rights of all other prospective purposive agents.31

Thus, morality, which consists of a concern for the interests of others, is derived from an individual’s recognition of her own needs and rights, which is then generalized to all others like her. Gewirth faces the problem of identifying who exactly qualifies for these rights, and, though his answer is quite predictable, it is not exactly convincing. He notes that, if other persons are in similar circumstances in terms of needing and/or possessing freedom, purposiveness, and well-being, then they should be recognized as possessors of the generic rights. At the same time, he admits that not all human beings qualify. So, children, the mentally handicapped, the clinically insane, and those suffering from mental diseases (e.g., Alzheimer’s) are among those who do not qualify, but exactly what disqualifies them is not immediately clear. In fact, Gewirth’s equivocation between the importance of negative freedom and positive freedom informs his distinction. The examples of the non-qualifiers for rights share the same incapacity for making authentically voluntary choices. He writes that “to be a…prospective purposive agent requires having the practical abilities of the generic features of action: the abilities to control one’s behavior by one’s unforced choice, to have knowledge of relevant circumstances, and to reflect on one’s purposes.”32 However, paternalistic moral theorists and paternalistic governments have long distinguished between those who are capable of making rational decisions and those who are not. They have treated large numbers of the adult population as if these hoi polloi were incapable of making rational choices, and it appears that, despite Gewirth’s own preferences for egalitarian universalism, his theory is just as susceptible to a paternalistic interpretation as to a libertarian one.33 After all, there are all sorts of reasons not to recognize other human beings as having the same sorts of capacities as the agent and/or the agent’s group. 31 Gewirth, RM , 75. 32 Gewirth, RM , 122. 33 One of Gewirth’s students, Roger Pilon, has developed a libertarian version of Gewirth’s theory by downplaying the centrality of well-being. Roger Pilon, “Ordering Rights Consistently: Or What We Do and Do Not Have Rights To,” Georgia Law Review 13 (1979) 1171–1196.

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The movement from Gewirth’s universalizing and generalizing the generic rights claims of the individual to his version of the SDP is reasonably straightforward and obvious. Gewirth calls his SDP the PGC and it is derived from the notion that all purposive agents are possessors of the generic rights of action. He writes that each individual ought to “act in accord with the generic rights of [her] recipients as well as of [herself].”34 This might seem a bit anticlimactic, but it is the expression of the notion that individuals should refrain from coercing or interfering with others without their consent, and that individuals should assist others in attaining well-being, if such assistance does not cost too much in terms of the assisting person’s freedom and well-being. The PGC as posited and explained by Gewirth is remarkably underdetermined in that it offers no guidance concerning which of the generic rights of other individuals should have priority when there is a conflict between them. Gewirth offers arguments about which rights should have priority, but these arguments are not logically deduced from the PGC, and, thus, violate his own strictures about the nature of rational judgment. The PGC also offers no determinate answer to the question of what counts as preserving others’ rights (e.g., if Rob’s wife Val is a drunkard and he threatens to leave her if she doesn’t quit, is he limiting her freedom by coercing her or is he attempting to preserve her well-being? What if Val doesn’t count sobriety as a part of her well-being?). As has already been suggested, the PGC manifests a seemingly irresolvable tension between its claims about the overridingness of both negative rights and positive rights. Gewirth seemingly admits this when he writes that, “as a complex principle combining the rights of freedom and well-being, the PGC faces the problem of the inherent consistency of these combinations.”35 Even if one chooses (arbitrarily?) that well-being trumps negative liberty, the PGC offers no guidance when dealing with multiple positive duties. Which of the three drowning people ought I to save? Which of the ten starving children should I feed? Gewirth does offer examples of the application of his principle, but none exhibit the ineluctably deductive character of his account of human rationality. In

34 Gewirth, RM , 135. 35 Gewirth, RM , 199.

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fact, his application of the PGC has been criticized as a manifestation of his own irrational prejudice against religion.36 Thus, despite deriving the PGC from an original concern with negative liberty or noncoercion, Gewirth’s application of it consistently errs on the side of restricting liberty in favor of his materialist conception of human well-being. It is certainly not apparent from the bare statement of the PGC that well-being should trump liberty, and other writers have interpreted the PGC to suggest that it would be more rational on Gewirth’s own account to accord liberty priority over well-being.37 Gewirth’s own sympathies concerning conflicts between positive and negative liberty become clear when one considers his account of autonomy. According to Gewirth, an individual who is acknowledged to possess the generic rights of action can reasonably be called autonomous in that she decides on her own principles of conduct. However, he writes that “if…one is rationally autonomous in the strict sense, then the general principle one chooses for oneself will have been arrived at by a correct use of reason, including true beliefs and valid inferences.”38 The latter individual is truly or authentically free, and the implicit suggestion is that those who are merely descriptively free might have to be reeducated in order to be authentically free.39 Gewirth’s version of authentic autonomy is not individual autonomy, but the autonomy of the faculty of reason, which is, according to his argument, the same in every human being. Thus, ironically, a moral theory premised on the importance to each individual of 36 Gewirth’s examples tend to support the notion that he places greater weight on well-being than on liberty. The most telling is his example of the Christian Scientist who refuses a blood transfusion for religious reasons. Gewirth argues that the Christian Scientist should be given one against his will because his refusal is irrational. In reviewing the example, it becomes obvious that Gewirth is ignorant of the doctrines of Christian Science, hostile to religion as irrational, and open to a much more paternalistic moralism than the bulk of the text suggests is warranted. See Gewirth, RM , 262−263. Writing about Gewirth’s treatment of the Christian Scientist, Marcus Singer writes, “I regard Gewirth’s judgment in this case as morally absurd—altogether unjustifiable,” and infers that Gewirth believes that “everyone has a generic right…to be forced to be well.” Singer, “Gewirth’s Ethical Monism,” 31. 37 See Jan Narveson, “Negative and Positive Rights in Gewirth’s Reason and Morality,” Edward Regis, Jr., ed., Gewirth’s Ethical Rationalism: Critical Essays with a Reply by Alan Gewirth (Chicago: The University of Chicago Press, 1984) 96−107. 38 Gewirth, RM , 138. 39 There is certainly an echo in Gewirth’s account of autonomy of Rousseau’s famous

line about forcing people to be free.

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negative liberty has the consequences, according to Gewirth, of eliminating the individuality of each individual, insisting instead that what is important about humans is that they are carriers of abstract rationality. More importantly, however, Gewirth’s own applications of the PGC are inherently controversial, suggesting that the PGC does not function in the way that Gewirth and other moral monists claim that a SDP must. He writes that “one of the conditions of the PGC’s being the supreme principle of morality is that it must be adequate for establishing the moral rightness or wrongness of all morally relevant actions and institutions.”40 Since it is clear, however, that the PGC does not offer demonstrably deductive conclusions that would be accepted by all rational human beings to all moral questions, then it is clear that it was and is an obvious failure on its own terms.

3

Hare’s Two-Level Utilitarianism

Utilitarianism is a consequentialist morality concerned primarily with the outcomes of particular actions. Like deontological moral theories, it is indifferent to the particularity of any individual involved in a moral action, but it must consider the circumstances of particular actions if it is to judge adequately the likely results of the action. Utilitarianism, in its various forms, calls for the maximization of some single value, pleasure or preference satisfaction being the most common. There are two versions of utilitarianism, act and rule utilitarianism, the former judging individual actions based upon utilitarian calculations, and the latter judging rules based on such considerations.41 R.M. Hare, in Moral Thinking, attempts to combine act and rule utilitarianism in order to overcome the perceived weaknesses of both. In this section, I examine Hare’s two-level utilitarianism as a further example of moral monism. Hare offers a unique foundation for his version of utilitarianism, attempting to derive it from the logical properties of moral language. Hare claims that he arrives at utilitarianism from an examination of the words that we commonly use in moral discourse. The attempt to derive

40 Gewirth, RM , 327. 41 Not all utilitarians are monists. See, for example, Richard B. Brandt, A Theory of the

Good and the Right, Revised Edition (Amherst, NY: Prometheus Books, 1998).

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a normative theory from an examination of language is not uncontroversial, but the attempt’s importance for my purpose is that Hare claims that such an examination will lead to the derivation of a SDP which ought to be capable of solving all moral conflicts. For Hare, moral language (e.g., the language of “ought” or “must”) has two defining characteristics. First, it is prescriptive, or action-guiding. Hare writes that “the prescriptivity of moral judgments can be explained formally as the property of entailing at least one imperative.”42 Hare also insists that, in making prescriptive or “ought” statements, individuals are expressing a preference that the prescribed action takes place. He claims that “all prescriptions, including moral ones, are expressions of preference or desires.”43 So, prescriptivity, for Hare, involves both the action-guidingness of “ought” statements, and the notion that “ought” statements express the preferences or desires of the person making them. Second, moral language, specifically “ought” statements, is universal, meaning that what is the right action is always, everywhere, and for everyone the right action in the specific circumstances in which it occurs. Hare suggests that “the thesis of universalizability requires that if we make any moral judgment about this situation, we must be prepared to make it about any other precisely similar situations.”44 However, unlike other moral theorists who emphasize the connection between universality and generality, Hare insists that there is no necessary connection between them, and that specific statements can be as universal as general ones, as long as proper names are not used in them. He notes that “we can…, without omitting any descriptive information, omit all individual references, so that the description will apply equally to any precisely similar situation involving precisely similar people, places, etc.”45 This claim about the possibility of specific universal statements is of central importance to his account of act utilitarianism because act utilitarian considerations (usually) entail specific actions not easily generalized. There are significant problems with Hare’s claims about moral language at this stage. First, neither prescriptivity nor universality is at all unique to moral language. Practical recommendations of all sorts are

42 Hare, MT , 21. 43 Hare, MT , 185. 44 Hare, MT , 42. 45 Hare, MT , 42.

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prescriptive and universal (e.g., “one ought to keep one’s eyes focused on the music, not on one’s strumming,” or “one ought to keep one’s head up when making a tackle in American football,” or “one ought to avoid slang when writing an academic paper”).46 Further, Hare claims that prescriptive statements involve a desire or preference on the part of the prescriber that the action be performed, but this is not a logically necessary part of a prescriptive statement. If a particularly unspectacular student asks her professor what she ought to do to better her grade, the professor might answer that the student ought to attend classes, complete assignments, etc., while being completely indifferent to whether the student actually does these things. The professor in this situation is an indifferent advisor, and this sort of scenario occurs regularly (think of one’s interactions with automobile mechanics). And it is often the case that a person can prescribe something for herself that she does not desire (e.g., she sneaks out of the house after her curfew and has a few potent potables with her friends and, the next day, her parents ask her where she was and what she was doing. It is perfectly reasonable to say that she might think, “I ought to tell the truth, but I have a strong preference not to do so.”)47 Hare’s claim that prescriptions are expressions of preferences or desires resembles quite closely the emotivist claim that moral judgments are merely the expression of personal preferences, which is surprising given Hare’s consistent rejection of emotivism. Nonetheless, it is on this rather shaky foundation that Hare claims to derive his preference utilitarianism. Hare’s eccentric conception of the connection between specificity and universalism is also not logically connected to the vocabulary of “ought” statements, while his rejection of generality (except when it comes to the SDP) distinguishes his version of act utilitarianism from any form of deontology. Its universality lies in its rejection of the inclusion of proper names. However, since the circumstances of any action can be described in almost infinite variety, the universality of insisting that anyone in the exact same 46 G.J. Warnock makes similar criticisms of Hare’s claim that prescriptivity and universality uniquely characterize moral language. See G.J. Warnock, Morality and Language (Totowa, NJ: Barnes and Noble Books, 1983) 168−175. 47 In an essay addressing Hare’s support for upholding a hard distinction between fact and value, Putnam writes that, contrary to Hare’s position, “there are many reasons why I may sincerely believe that something is good and not be motivated to desire or choose it.” Hilary Putnam, The Collapse of the Fact/Value Dichotomy and Other Essays (Cambridge, MA: Harvard University Press, 2002) 42.

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circumstances ought to do the same as anyone else loses its force and importance. The slightest change in circumstance would justify a different action completely. This all suggests that Hare doesn’t so much derive his utilitarianism from the nature of moral language as derive his particular conceptions of prescriptivism and universalism from his commitment to utilitarianism. Still, as noted above, Hare’s attention to “ought” statements has not provided any criterion for distinguishing between practical or prudential advice or admonition and moral advice or admonition. His third characteristic of moral language is that it always overrides all other considerations. He writes that “that which distinguishes moral from other evaluative judgements…is ‘overridingness.’”48 That is, moral considerations trump all others. However, unlike prescriptivity and universality, Hare makes no attempt to connect “overridingness” to the logic of “ought” statements. Instead, the quality of “overridingness” appears to be an aspect of the logical meaning of “moral” for Hare. It is the central stipulative characteristic of morality that it is overriding. This claim that moral judgments trump all others is characteristic of moral monism in its various forms (as is manifest in Gewirth’s deontological ethics), but Hare does offer much support for the notion. Again, it seems that Hare is not really deriving utilitarianism from moral language so much as importing utilitarian positions into general conceptions of morality. Thus, although “ought” statements are generally prescriptive, they do not necessarily exhibit the “preferences” of those prescribing things, and the prescriptivity of moral language is fully compatible with agentcentered “virtue” ethics, deontological ethics, or pluralist ethics. Further, the universality of “ought” statements is generally understood to issue in general principles of action, but Hare’s commitment to act utilitarianism involves the rejection of generality, which tends to empty the quality of universality of much of its significance. Finally, the concept of overridingness does not seem to be derived from the language of “ought” statements, but appears, instead, to be what Hare believes distinguishes moral from prudential language. Here, then, Hare is relying on a stipulative definition of “moral,” and not deriving anything from common usage.49 48 Hare, MT , 24. 49 As Bernard Williams has suggested, our common moral language doesn’t necessarily

entail that it overrides all other considerations. It makes sense to say that, e.g., Gaugin

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Hare claims that the characteristic features of moral language, prescriptivity and universality, necessarily lead to an understanding of moral judgment in terms of act utilitarianism, which he defines as the maximization of preference satisfaction. This claim is dependent upon the acceptance of the faulty notion that prescriptive statements are necessarily statements of preference or desire. Nonetheless, Hare argues that, if prescriptions are expressions of preferences, then morality is concerned with the satisfaction of preferences. He writes that moral judgments deal with “the likely effects of possible actions…on people (ourselves and others); that is to say, on their experiences and on whether those experiences are such as the people prefer to have.”50 The move from a concern with the satisfaction of an individual’s preference to the satisfaction of all preferences (i.e., the maximization of preference satisfaction) is common to all versions of utilitarianism (it is, of course, stated differently in versions of utilitarianism which emphasize maximizing pleasure and minimizing pain), and is a manifestation of an often unargued assertion that universal benevolence is the only authentic human virtue.51 The commitment to a single overriding human virtue is directly connected with the creation of a SDP to resolve moral conflicts. Interestingly, Hare recognizes some of the weaknesses of traditional accounts of act utilitarianism and creates a complex two-level theory which attempts to combine certain aspects of both rule utilitarianism and deontology, while also maintaining his ultimate commitment to a form of act utilitarianism which is reducible to a SDP.52 was an immoral cad for leaving his wife and children, but, given the quality of his artistry, it was a reasonable and justifiable decision. If it is reasonable to say, “immoral, but justifiable,” then moral considerations aren’t always overriding. See Bernard Williams, Moral Luck (Cambridge: Cambridge University Press, 1981) 20−39. 50 Hare, MT , 90. 51 For example, the act utilitarian philosopher J.J.C. Smart claims that “in setting up a

system of normative ethics the utilitarian must appeal to some ultimate attitudes which he holds in common with those people to whom he is addressing himself. The sentiment to which he appeals is generalized benevolence, that is, the disposition to seek happiness, or at any rate, in some sense or other, good consequences for all mankind, or perhaps for all sentient beings.” J.J.C. Smart and Bernard Williams, Utilitarianism: For and Against (Cambridge: Cambridge University Press, 1973) 7. 52 Some of the more consistently observed problems with act utilitarianism include: (1) Any individual actor’s preferences will be consistently outweighed by the preferences of others on every occasion, unless that actor conforms her preferences to the preferences of others. Indeed, a particular unpopular human being committed to a simple form of

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Hare calls the first level intuitive moral thinking, though this should not be confused with the intuitionism of Moore or Prichard. At this level, individuals are taught a morality of duties, principles, rules, etc. According to Hare, the intuitive level of moral thinking is inculcated in such a way that a violation of duties, principles, rules, etc., is considered to be a grave moral fault. This intuitive level is to be understood by those operating within its parameters as the deontologist understands morality as a whole to be properly understood. For Hare, however, the rules or principles of the intuitive level are, in reality, to be understood in terms of rule utilitarianism. He claims that “the method to be employed is one which will select moral principles for use at the intuitive level…on the score of their acceptance-utility, i.e., on the ground that they are the set of principles whose general acceptance in the society in question will do the best, all told, for the interests of the people in the society considered impartially.”53 That is, rules and principles should be inculcated and followed if, and only if, they maximize preference satisfaction. One problem with Hare’s formulation of the intuitive level is that the principles, rules, and beliefs that comprise any normal version of common sense or intuitive morality are not the result of a set of conclusions derived from testing such principles, rules, and beliefs according to a utilitarian calculus, but instead emerge out of an extraordinarily complex tradition specific to the community which holds the beliefs. Nonetheless, according to Hare, the intuitive level of moral thinking suffers from the fact that an individual acting within any system of principles or rules will encounter situations in which rules and/or principles conflict with each other. The intuitive level cannot resolve such conflicts, and, thus, according to Hare, the rational individual, when faced with such conflicts, will move her thinking to a higher level, which Hare calls critical moral thinking. For Hare, as for

act utilitarianism might think that she ought to commit suicide to satisfy the preferences of others. This perverse diminution of the importance of any individual’s preference does not necessarily present theoretical problems to the utilitarian, but it does pose serious motivation problems for individual actors; (2) The complexity of figuring out what the preferences of others actually are presents serious difficulties as to the possibility of a successful kind of act utilitarianism, while also encouraging rationalizing one’s own preferences as outweighing those of others. (3) Act utilitarianism seems to be a self-defeating moral theory, as it destroys the trust that makes living with others possible. For similar criticisms of act utilitarianism, see G.J. Warnock, The Object of Morality (London: Methuen & Co., 1971) 27−34. 53 Hare, MT , 156.

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Gewirth above, the existence of conflict is a sign of irrationality, either of the individual or individuals involved in the conflict or of the rules or principles themselves.54 Hare’s second level, which he calls critical moral thinking, involves the act utilitarian calculation of maximizing preference satisfaction. Reflecting the original notion of utilitarianism as maximizing happiness, Hare on occasion equates preference satisfaction with happiness itself. In the simple act utilitarian calculus, whenever a person considers what she ought to do, she must take into account the actual preferences of all of those human beings (or sentient beings) who will be affected by the action.55 In any situation, a person must put herself into the position of everyone else affected and somehow calculate the nature and strength of all of these other people’s preferences vis a vis the action at hand and then act in a way which would maximize preference satisfaction. Hare writes that: What critical thinking has to do is to find a moral judgment which the thinker is prepared to make about this conflict-situation and is also prepared to make about all the other similar situations. Since these will include the situations in which he occupies, respectively, the positions of all the other parties in the actual situation, no judgment will be acceptable to him which does not do the best, all in all, for all the parties.56

Hare recognizes that accepting all preferences equally can produce perverse results, and so he places severe constraints on what count as human preferences. Thus, irrational preferences do not count, but, instead, a person should only take into account the preferences which would be held by others if these others had full knowledge of the facts of the situation and full command of their own reason. He suggests that 54 Hare quotes a Yorkshire minister approvingly in what could be called one of the canons of the monist’s creed that “if you have conflicting duties, then one of them isn’t your duty.” Hare, MT , 26. 55 Hare’s former student Peter Singer is notable for his defense of extending the utilitarian calculus to non-human beings. His version of act utilitarianism emphasizes the reduction of pain/suffering, and so is somewhat different from Hare’s. Singer is also unlike Hare in what he sees as the moral implications of the doctrine. Hare attempts to domesticate utilitarianism, insisting that his two-level theory supports most of our moral intuitions, while Singer seems to revel in using his utilitarianism to attack our moral intuitions. For a sample of Singers’ eccentric moral positions, see the essay collection Singer, Practical Ethics. 56 Hare, MT , 43.

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“we are to assume, when we come to universalize our prescriptions, as morality demands, that we have to consider only those prescriptions and preferences of others which they would retain if they were always prudent in the sense just defined” [i.e., their preferences have been “exposed to facts and logic”].57 Like other utilitarians, Hare rejects the notion that any one person’s preference has a veto over any action, but he does recognize that different preferences will be weighted differently by different people. So, Hare’s rather complex SDP amounts to something like this. In any situation, a person ought to consider the rational preferences of all those affected by her actions (including her own preferences), and, after weighing all of these preferences, she ought to act in a way that maximizes the rational preference satisfaction of those affected. This consideration will issue in a universal prescription, which, according to Hare, will almost certainly not be general but quite specifically related to the facts of the situation. In constraining the type of preference considered, Hare does mitigate some of the problems associated with knowing what the preferences of others are. Nonetheless, his version of act utilitarianism and his two-level theory contain significant problems of their own, and manifest several of the difficulties shared by all versions of moral monism. In Hare’s two-level utilitarianism, people are inculcated with a deontological belief that moral rules or principles should be followed because they are morally good in themselves. At some point (it’s not clear when), either these people are told or they figure it out for themselves that the rules are not actually intrinsically good or worth being followed but are good solely insofar as they contribute to overall preference satisfaction. Bernard Williams has commented on the psychological absurdity of this position, noting that the deontological commitment to the rules is what makes such a moral system effective, and telling people that the rules are really only to be followed if following them brings about positive consequences undermines completely the possibility that the rules remain consequentially effective.58 It would be like a seemingly orthodox Catholic mother and father raising their children to believe in the literal 57 Hare, MT , 105. 58 Williams writes that “the theory…cannot work if people, in full reflection and all

the time, believe in it.” Williams calls two-level theories of Hare’s type “Government House” utilitarianism because they rely upon the ignorance of the masses that the rules that they are following are really only to be followed for utilitarian reasons. Since Hare claims that his two levels do not represent two classes of people, Williams allows that

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truth of Catholic doctrine, including the moral commandments, and then informing them as they come of age that the whole religion is really nothing but a ruse to get them to behave themselves. Expecting the disabused to continue to give anything more than lip service to their former beliefs is rather fantastic, and it is far more likely that the disabused will believe that it is their duty to expose the whole system as the fraud that it is. Indeed, Hare’s argument that the intuitive level is the level on which most people will and ought to operate constitutes an admission that the world is better off in utilitarian terms if people do not accept utilitarianism. That is to say, if we are concerned with the consequences of our actions, then we should not be utilitarians. If Hare’s second level of moral thinking involves the consideration of actual human preferences, it is subject to all of the weaknesses attributed to act utilitarianism. If there are no constraints on what counts as preferences, then, according to the utilitarian, there are no such things as immoral preferences. The example of majorities enslaving minorities is a common one, but it is clearly one of the weaknesses of majoritarian decision-making of the utilitarian kind that it often justifies the mistreatment of minority groups, whether racial, ethnic, electoral, or other in ways which profoundly conflict with common sense morality. Further, human preferences are often incompatible with each other. For example, an individual might prefer both to be told the truth about her cheating spouse and also at the same time to remain ignorant in order to preserve her happiness. Or, it is commonly understood that most individuals in modern political communities prefer both low taxes and extensive services, but these two things are, unfortunately, incompatible. If the preferences of an individual are incompatible with one another and if the preferences of communities are incompatible with one another, then the utilitarian answer is to “weigh” the preferences and make a decision based upon which preferences are the “heaviest.” This necessarily metaphorical description is meant to give a scientific veneer to what is, more or less, educated guesswork on the part of the deciders, and most utilitarians fully Hare’s version might not count as a “Government House” theory, but, given the selfdefeating character of it, I would say that Hare’s version should be understood as one. Bernard Williams, “The Structure of Hare’s Theory,” Hare and Critics: Essays on “Moral Thinking,” Douglas Seanor and N. Fotion, eds. (Oxford: Clarendon Press, 1988) 192. For a discussion of “Government House” utilitarianism and Hare’s theory, see Bernard Williams, Ethics and the Limits of Philosophy (Cambridge, MA: Harvard University Press, 1985) 108−110.

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admit this.59 Finally, preferences are often incommensurable, in that they cannot be reduced to a common metric which would allow them to be weighed against each other. A person might reasonably argue that Matisse is preferable to Picasso, but what about the paintings of Matisse versus the beaches at St. Tropez or versus honesty or versus playing canasta with friends, etc.? It is not at all clear that there could possibly be a universal measure to which all preferences (or pleasures) are reducible.60 Hare’s version of act utilitarianism avoids some of the more egregious examples of utilitarianism, but it does so by placing severe constraints on what counts as a preference. Hare restricts the preferences to be considered to only universalizable and rational preferences, but, in doing so, he leaves the utilitarian world and its concern with actual human happiness behind him. If the preferences under consideration are not actual preferences but rationalized ones, then the connection between preference satisfaction and happiness has been severed.61 If Rob asks Val to buy him a case of beer when she is out grocery shopping and Val returns without the beer insisting that Rob’s authentic rational self wouldn’t really desire a case of beer, it is highly unlikely that Rob will be made happy by this fulfillment of his so-called rational preferences. This scenario can obviously be generalized to a larger population. In such a scenario, a highly paternalistic government provides all sorts of services to its population, but they are not services that the population desires and, thus, the actual happiness of the population is diminished by the fulfillment of their supposed rational desires.62 59 For example, J.J.C. Smart, an act utilitarian, admits that, when making moral decisions, “I am…supposing what is perhaps a fiction, that numerical values can be given to benefit or harm.” Smart, Utilitarianism, 60. 60 I will address the issues of incompatibility and incommensurability more fully in Chapter 3. 61 James Griffin observes that “there is the obvious danger with informed-desire accounts that they become plausible accounts of well-being only by, in effect, ceasing to be in any real sense desire accounts.” James Griffin, “Well-being and Interpersonal Comparability,” Hare and Critics: Essays on “Moral Thinking,” Douglas Seanor and N. Fotion, eds. (Oxford: Clarendon Press, 1988) 83. 62 Williams writes that “if a utilitarian administration operates not on the basis of what

people prefer, but on the basis of what they would prefer if they were better informed, it is possible that those for whom it acts will always be discontented with what is actually done, since they may never lose their errors and, if they do not, will never actually have the idealized preference the policy is designed to satisfy.” Williams, Ethics and the Limits of Political Philosophy, 88.

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Hare’s rationalized preference satisfaction model is also susceptible to the criticisms leveled at deontology. That is, it is a theory which begins by claiming that moral judgments are concerned with what is good for individual human beings, but which, by severely restricting what counts as a rational human action, eliminates the individuality of any actual human being, reducing humanness to the individual’s share in abstract universal reason. Finally, Hare himself admits that his SDP is underdetermined. He writes that, “in practice, one cannot strike in any scientific way the immensely complicated balance of sufferings and probabilities of sufferings that is needed” to answer all moral questions.63 Thus, Hare acknowledges that his own act utilitarian theory is incapable of accomplishing what SDPs are supposed to accomplish (i.e., to provide an answer to each and every moral dilemma so that “in practice we would be bound to all agree to the same” moral conclusions).64 In closing, the utilitarians are certainly correct in considering impartial benevolence to be a virtue, but it is not the only one. They are also correct in claiming that a person should consider the consequences of her actions when engaged in moral deliberation, but consequences should not be her only consideration. On the other hand, the deontologists’ insistence that each individual deserves to be considered a distinct moral personality deserves consideration, as well, but such consideration should not override any other consideration, and the consequences of a person’s actions should be taken into account along with respect for moral personality. Both forms of moral monism manifest a refusal to acknowledge the reality of moral complexity and the ineluctability of moral conflict. As Thomas Nagel once wrote, “in ethics, theoretical simplicity is not a virtue.”65 In the next chapter, I will consider the sources of moral complexity and conflict in my discussion of the nature of various claims that the great variety of moral values, principles, rules, etc., are inevitably incompatible and incommensurable.

63 R.M. Hare, Essays on Political Morality (Oxford: Clarendon Press, 1989) 27. 64 Hare, MT , 6. 65 Thomas Nagel, “Hare: Moral Thinking,” Other Minds: Critical Essays, 1969−1994 (Oxford: Oxford University Press, 1995) 155.

CHAPTER 3

Morality and the Incompatibility and Incommensurability of Values

Abstract This chapter considers the sources of moral complexity and conflict, and offers the author’s first account of value pluralism. Like other versions of value pluralism, mine includes a discussion of the nature and variety of human values and valuation, and also a series of claims about the relationship between or among values. This chapter argues that values are plural, that there are nonmoral values as well as moral ones, that these values often conflict, and that they are often incommensurable. Keywords Incompatibility of values · Incommensurability of values · Valuation · Value pluralism · Moral pluralism · “Dirty hands” conflicts

If we accept the inflated aspirations of moral monism as definitive of moral philosophy, then we should admit defeat and accept that moral judgments are subjective and arbitrary, and conclude that morality is a matter of irrational relativism. However, as already suggested, the moral monists posit a false choice between a quasi-mathematical decision procedure and irrationalism.1 If conflict is understood, not as a sign of irrationality, but as a part of the inherent character of human lives, then the impetus for moral 1 I do not claim to have incontrovertibly demonstrated in Chapter 2 that the formulation or discovery of a satisfactory Single Decision Procedure (SDP) is a logical impossibility. However, since there have been numerous SDPs promulgated and none

© The Author(s) 2021 K. B. McIntyre, Nomocratic Pluralism, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-53390-8_3

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monism lessens considerably. In this chapter, I offer an account of the nature of human values and the connection between values and moral considerations, claiming that values are plural, that there are nonmoral values as well as moral ones, that these values often conflict, and that they are often incommensurable.2 For example, there are different moral or value systems in the world and in world history (e.g., Homeric honor, the Victorian gentleman, Medieval chivalry, contemporary liberalism), and every single one is necessarily incomplete in that each has not and cannot realize perfect human goodness, and each offers a set of values not reducible to any other3 ; second, that within value systems, there is inevitable conflict between values (e.g., liberty v equality, love v independence, justice v mercy), and that such conflict occurs because these values are incompatible and incommensurable (i.e., they are not reducible to a single metric); and, third, that such conflicts are inevitable even within the moral life of individuals, who have to make choices among multiple

have been universally accepted in the manner that mathematical proofs are accepted, it is improbable that one will be found which displays the mathematical certainty and, thus, can gain universal acceptance in a way that moral monists claim ought to be characteristic of SDPs. On the other hand, there are black swans, so anything is possible. 2 The term “value” is used here to refer to things that humans, both subjectively and objectively, need or desire in order to live decent lives. I am not using it in the sense that Carl Schmitt and other continental writers of the nineteenth and twentieth century used it. Schmitt associated the term ‘value’ with ideological politics of an especially violent sort. He writes that “whoever says value, wants to make valid and impose values. Virtues one exercises; norms one applies; commands are fulfilled; but values are set down and imposed. Whoever asserts their validity must make them valid.” His primary concern was that states would prioritize their own values and attempt to impose such values on other states. Insofar as this was his concern, his work on values can be seen as supporting my claims about value pluralism. See Carl Schmitt, The Tyranny of Values and Other Texts, Samuel Garrett Zeitlin, trans. (Candor, NY: Telos Press Publishing, 2018) 31. 3 I will not be focusing on this sort of intercultural or inter-moral pluralism in the chapter, but will examine it in Chapter 5 when I offer a critical account of modus vivendi liberalism. For a discussion of intercultural pluralism of this sort, which she calls second level pluralism, see Susan Wolf, “Two Levels of Pluralism,” Ethics 102 (1992) 785−798. Bernard Williams suggests that notional comparisons between cultures or moralities, which are comparisons between cultures and moralities that represent real options and cultures and moralities that do not represent real options, are not particularly useful or relevant to comparisons between real options. As he notes, “the life of a Greek Bronze Age chief, or a medieval Samurai, and the outlooks that go with those, are not real options for us: there is no way of living them.” Bernard Williams, “The Truth in Relativism,” Moral Luck (Cambridge: Cambridge University Press, 1981) 140.

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forms of the good life.4 Thus, there is no one single hierarchical value or principle that rules them all, but a variety of valuable choices, both moral and nonmoral, and a variety of morally acceptable forms of life.5

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Values and Morality

Instead of viewing this variety with dismay, we should understand that the variety of values and the concomitant conflict that comes with that variety are necessary characteristics of human valuation and reflect the true character of the life of human beings. So what is the nature of human values and what is the connection between values and moral considerations? First, human values have two elements. They are things that are valued and that are valuable. So, things valued purely subjectively by someone (e.g., a tumor removed from a person’s lymph nodes kept in a jar by her bed, or the head of Blucher Philogenes which Papa Doc Duvalier kept in his closet) ought not to be necessarily considered values, but it’s difficult to imagine something being valuable if it is valued by no one. In one sense, valuations are unique to human beings because valuation involves human judgments. So, while one might say that a can of Alpo is valuable to Rover, it does not make sense to say that Rover values the Alpo because Rover does not have the cognitive ability to make complex value judgments. Further, human values can be expressions of principles or rules, e.g., always be honest, kind, just, merciful, humble, wise, etc.; observe the golden rule; or maximize pleasure or preference satisfaction, but expressions of value do not necessarily have to take such forms. In any case, human values are concerned with things, actions, institutions, beliefs, etc., that either benefit or harm human beings, either directly (e.g., succoring the poor v. giving them a lashing) or indirectly

4 Berlin notes that “the ideals of one society and culture clash with those of another, and at times come into conflict within the same society and, often enough, within the moral experience of a single individual;…such conflicts cannot always, even in principle, be wholly resolved.” Isaiah Berlin, Concepts and Categories (Princeton: Princeton University Press, 1978) 96. 5 Mill’s arguments about “experiments in living” are a seminal version of value pluralism,

but his confusing claims about his commitments to utilitarianism and his division of pleasures into higher and lower kinds make identifying him as such a difficult proposition. For a brief discussion of Mill’s ambiguous position regarding value pluralism, see John Kekes, The Morality of Pluralism (Princeton: Princeton University Press, 1993) 67−69 and John Gray, Two Faces of Liberalism (New York: The New Press, 2002) 57−62.

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(e.g., composing a brilliant and innovative new opera v. contributing to the deforestation of the Amazon rainforest). This question of “benefits” and “harms” should not be confused with a purely consequentialist ethic, however. What we as human beings owe to other human beings (i.e., our obligations or duties) can be understood in terms of harms and benefits, and the prohibitions and imperatives that condition human interactions can also be considered in terms of harms and benefits. Further, there is a third category of value that humans attach to things that are intrinsically good or excellent in themselves (e.g., art, philosophy, mathematics, nature, etc.).6 Benefits and harms deal with questions of a better or worse life in all respects, while values of excellence attach themselves to things that are supposedly purely and objectively exemplary. Thus, the deforestation of the Amazon basin can be understood as a harm without necessarily connecting it with some sort of existential danger to the existence of human beings. It can be and has been conceived as a harm for completely non-consequential reasons, such as, for example, that the deforestation is a dereliction of the human duty to be the steward of the earth ordained by God in Genesis, or that the deforestation involves the destruction of an aesthetically unique and, thus, irreplaceable spot on earth. However, it is just as reasonable to object to the deforestation because the preservation of pristine nature is itself intrinsically valuable.7 Generally, virtues like courage, honesty, and charity make life better, while vices like cowardice, treachery, and miserliness make life worse. Indeed, there are certain material and nonmaterial things that are valued in every human community. Humans naturally value, on the one hand,

6 My account of values owes an obvious debt to Plato’s discussion of the three types of good things in Book II of The Republic. He distinguishes between things that are good in themselves, things that are instrumentally good, and things that are good in both ways. The values of excellence mentioned above are, of course, quite often, but not always instrumentally good for human beings as well as being purely excellent. For a discussion of the values of excellence, see Susan Wolf, “Good-for-Nothings,” The Variety of Values: Essays on Morality, Meaning, and Love (Oxford: Oxford University Press, 2015) 67−85. 7 David Wiggins offers an account of the value of nature that both appeals to human interests in conservation and preservation, and also appeals to the intrinsic value of nature or the excellence of nature. He also provides a relevant quote from Thoreau on the issue: “This curious world we inhabit is more wonderful than convenient, more beautiful than it is useful; it is more to be admired and enjoyed than used.” David Wiggins, “The Presidential Address: Nature, Respect for Nature, and the Human Scale of Virtues,” Proceedings of the Aristotelian Society 100 (2000) 8.

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things that are necessary for their physical survival, such as a readily available and easily accessible supply of food, clean water, clean air, and shelter. On the other hand, humans have traditionally valued friendship, erotic companionship, and some sort of social or communal life. These primary values are necessary for almost any sort of human flourishing to occur (though renunciation of any or all of these values has also characterized morally decent human lives over the centuries). These sorts of values are central to what the minimum content of any acceptable morality would include, but the values are not specific in what they actually require and, thus, allow for a great variety of acceptable moral systems (e.g., humans need to eat, but what they believe that they ought to eat has varied and continues to vary wildly, from the vegan and vegetarian to the kosher and the cannibal).8 Many writers on moral pluralism use the term “value pluralism” as a synonym for moral pluralism. I distinguish between value pluralism and moral pluralism because there are all sorts of things that human beings value and which are valuable which are not properly to be understood as moral values. I also want to claim that it is sometimes reasonable for nonmoral values to override moral considerations. Value pluralism is concerned with what constitutes good lives for human beings, and is, thus, not merely a moral theory. As already suggested, there are things that are valued by human beings and that are valuable to human beings which are neither moral nor immoral (e.g., ice cream, a sunny day, physical and mental health), though they could be involved in moral questions (e.g., do I buy myself an ice cream cone or donate the money to charity?, should I break a promise in order to enjoy the sunny day?, should I place my concerns about my physical and mental health above those of my children or the children of the world?). Because so much of the world of value is nonmoral, it is necessary to take nonmoral values seriously when considering moral questions. So what distinguishes moral values and nonmoral ones? I want to emphasize that the distinction which I make between moral and nonmoral

8 I will address the minimum content of moral systems in Chapter 4. For a discussion

of the distinction between primary values and secondary values, see Kekes, The Morality of Pluralism, 38−52. Stuart Hampshire makes a similar distinction but uses the terms “natural” and “conventional” or “artificial” to describe the different kinds of values. Stuart Hampshire, Morality and Conflict (Cambridge, MA: Harvard University Press, 1983) 141−169.

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is not meant to be totally dichotomous. I readily accept that there are questions on the margins that are not easily answered, and I will attempt to address some of those later in this section.9 Nonetheless, morality, as I will use the term and its cognates, concerns the social actions of human beings, more specifically, the effects of the actions of individuals or groups on other individuals or groups. Once again, I am not suggesting that morality is solely concerned with the consequences of actions. Moral duties or obligations, in the deontological sense of the term, are duties or obligations to others, and those duties or obligations cannot be judged solely in terms of their consequences. However, it is reasonable to conclude that such obligations generally involve avoiding harming others, in the Platonic sense of making others worse than they were. Treating other human beings as ends, and not solely as means involves not harming them, and, on occasion, actually benefitting them.10 Further, insofar as moral values concern our relations with other human beings, they do not deal with every good thing or bad thing that happens. For example, natural disasters and diseases are generally considered harms, but they are not morally bad. Of course, the way that humans deal with them can be immoral, but a tornado is not immoral and neither is Alzheimer’s disease. There are difficult areas here, too, however. Those who contract cancer from second-hand smoke can make a reasonable claim that the smoking that caused their disease is immoral, just as those who suffered and continue to suffer diseases contracted from the leakage of pesticides in Bhopal in 1984 can reasonably claim that Union Carbide acted immorally. Additionally, it makes little sense to call Hurricane Katrina immoral, but the cack-handed incompetence demonstrated by national, state, and local governments in coping with the catastrophe

9 Stuart Hampshire’s tentative definition of morality is relevant here. He suggests that

“if morality were to be defined, which is unnecessary, it might be defined by reference to its central topics, and not by the alleged logical peculiarities of moral judgments…It is a system of prohibitions and injunctions concerning justice in social relations, the control of violence and killings of all kinds, about war and peace, the regulation of kinship, the customs of friendship and family…[I]t is for us natural to be unnatural in these spheres, following both reason and history, and consequently it is natural for us to be involved in repression and conflict: these are the costs of culture and of the balance between reason and memory.” Hampshire, Morality and Conflict, 169. 10 There are also moral values which are similar to objective values of excellence. These deal with supererogatory actions, which are, by definition not connected with obligations or duties and cannot be judged solely by their consequences, either.

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certainly can be called immoral. On the other hand, if it becomes widely accepted that human beings are responsible for changes in the climate which adversely affect the weather or even cause, for example, hurricanes, then hurricanes might be considered in a moral light because they are the result of human actions. This particular conception of morality and moral value also means that moral considerations do not concern the beneficial or harmful effects of our actions on ourselves. That is, a person cannot be immoral to herself, though this distinction is also not meant to be a dichotomous one, and moral considerations which involve an individual’s conception of her moral status, especially when such considerations involve her integrity as a moral being, will cross the thin line between the moral and the nonmoral. So, for example, if Rob promises his children a family Christmas spent at home, and then is invited by friends to travel for Christmas to Aruba, a place that he has always wanted to go, he can consider his own desires in making his decision whether or not to break his promise, but his selfinterested considerations would not be moral ones. If, on the other hand, Rob is informed on Christmas Eve that his parents, who live a thousand miles away, have been in a serious automobile accident and might not survive another week, then his considerations about whether to break his promise would be moral ones, as well, because they would not be concerned purely with the satisfaction of his desires but with his obligations to others. The question of integrity could arise in this example, however. If Rob’s parents had neglected him as a youth and he had made it a personal project to be a reliable, loving, and present parent, then his consideration of his own integrity as manifested in the project to be a good parent could then be understood as a moral consideration of sorts. That said, since moral values concern the relation of human beings with each other, their character will be primarily social. Moral values like honesty, courage, kindness, fairness, justice, loyalty, mercy, friendship, etc., refer to the ways that the decisions of individuals make life better for people other than themselves. Thus, moral considerations focus on one aspect of an action, how it affects other human beings. However, the example is not meant to suggest that the only considerations to be taken into account when making decisions are moral ones or self-interested ones. There are other nonmoral values than the values of self-interest. If values deal with things that benefit or harm human beings on the one hand and things that intrinsically are excellent on the other, and moral values are values that, for the most part, are connected to the

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effects of human actions on other humans, then there will obviously be nonmoral values if certain harms, benefits, and specifically excellent things are not connected to the effects of human actions on other human beings. For example, temperate weather, natural good health, and natural intelligence or skill are beneficial for human beings, but are not necessarily the result of human actions (keeping the caveat in mind about humancaused climate change), while the natural beauty of the Grand Canyon, Victoria Falls, and the Great Barrier Reef are examples of natural excellence, having not been created by human endeavor. So, one category of nonmoral values (and disvalues) can be understood to include naturally occurring benefits and harms, and also naturally occurring excellences. A further category of nonmoral values includes what Thomas Nagel has called perfectionist values.11 This includes things created by human beings which are valued because of their exemplary excellence. Some of these values, like courage, integrity, self-reliance, an appreciation of beauty, and an appreciation of truth are connected with being an exemplary human being. Others are connected with specific forms of human activity. For example, there are values associated with aesthetics, such as artistic beauty (as opposed to natural beauty), virtuosity, technical excellence, innovation, and personal style. There are also epistemic values, such as honesty, intelligence, creativity, disinterestedness, and inventiveness. Human beings value these characteristics in themselves and others not merely because they produce instrumentally useful things, though it is the case that these characteristics can be useful. Instead, these characteristics and the artistic and intellectual creations which result from them are valued because they are considered to be excellent in themselves. For example, literary scholars place a higher value on the work of William Faulkner than Danielle Steele, not because there is some sense in which Faulkner is more beneficial than Steele. After all, it is likely that reading Faulkner might offend the moral sensibilities of some. Faulkner is more highly valued because he is a better novelist than Steele. Similarly, art critics value a painting by Modigliani more than a painting by Bob Ross because it is a better painting. And NFL sportswriters will elect Peyton Manning to the NFL Hall of Fame and won’t elect Ryan Leaf because 11 Nagel distinguishes between the sources of values, but does not make the same sort of distinction that I make between moral and non-moral values. Thomas Nagel, “The Fragmentation of Value,” Mortal Questions (Cambridge: Cambridge University Press, 1979) 128−141.

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Manning was a better football player. Notice, however, that the objectivity of the values of excellence will in many cases be closely connected with a more or less stable practice or set of practices, which means that it is often the case that those without any experience or knowledge are incapable of making adequate judgments of value when excellence is concerned. Of course, when one is considering the excellences related to human beings generally, the qualifications for judging are less exclusive. Another category of nonmoral values pertains to the relationship between human beings and transcendent reality. Religious values are often closely connected with moral values because most religions contain explicit rules about proper human behavior, specifically rules concerning how humans ought to treat other humans. These moral rules, however, do not exhaust the whole of religious valuation. Indeed, in many religions, these moral rules are considered authoritative solely because they are considered to be the utterances of God or the gods or, perhaps, transcendent Reason. In these religions, the relationship between an individual or group and God or the gods is primary and moral questions secondary. This religious relationship is nonmoral in the sense that God or the gods is not a being who could in fact truly be harmed by things that human beings do. God, in the Aristotelian sense of a fully complete and autonomous unmoved mover, is something that human beings can value or worship as a unique uncreated excellence, but this too would be a nonmoral relationship. Human beings might believe that they ought to love their neighbors, not bear false witness, and not covet their neighbors’ goodies because God tells them to do so, and, when they follow these commandments, they are acting morally. Nonetheless, the human commitment to have no other God but the true God, and to worship Him in the proper way is not a moral value, but a religious one. Finally, there are the more traditional self-regarding values connected, on the one hand, with the centrality of a person’s projects and commitments to her personal autonomy and integrity, and, on the other, with the normal values associated with reasonable self-interest. Examples of the latter include prudence, cleverness, ingenuity, knowing how to make things work, knowing how to make things break, etc. The values associated with personal projects and commitments are, as mentioned, integrity and autonomy, but also friendship and love. Unlike the values of selfinterest, the latter values of personal commitments often shade into moral values, and complicate any attempt at the creation of an absolute dichotomy between nonmoral and moral values.

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As mentioned, the distinctions that I have noted above between moral and nonmoral values and between the kinds of nonmoral values are not intended to be taken as absolute. There are difficulties with conceiving of valuation in the way that I have done, and there are difficulties with the distinction between moral and nonmoral valuation. However, I do not believe that these difficulties damage the case for value pluralism. Instead, they underscore the complexity of moral and practical judgments that moral monists reject. One problem that confronts philosophers that does not necessarily confront those in other disciplines is that part of the task of a philosopher is to define the subject matter of her analysis. Thus, anyone engaged in moral philosophy must address the character of the moral, and this necessity entails a commitment to conceiving human actions in certain ways which emphasize certain aspects of actions and minimize others. My formulation of morality as concerned with the effects of human actions on other human beings is obviously partially derived from Mill’s distinction between self-regarding and other-regarding actions. This distinction, like so many, is quite clear in many cases, but the borders are not well defined and easily crossed. So, sitting home drinking a beer or ten, reading a book, playing the guitar, watching a baseball game, listening to Shostakovich’s string quartets all seem obviously selfregarding, but all involve some level of interaction with the outside world. Someone has to buy the beer (or the ingredients to make the beer), buy the book, buy the cd or download it from the internet, buy the guitar, buy the television, etc., so, according to some, even these are intertwined with and affect others. Even if one accepts that, for the most part, such actions as these are truly self-regarding, is it always true that self-regarding actions are nonmoral? This question is especially relevant to considerations of how personal integrity, which is a relation with oneself, is involved in situations which are obviously morally charged. Integrity is a value expressive of a person’s commitments to live in a certain way, but these commitments certainly do not have to be moral commitments. For example, over the years of her life, Val has developed a refined and exquisite taste in wine. She travels to France each year to sample the new vintages. She spends a substantial percentage of her salary on expensive wine. At a dinner party, the only wine on offer is a Sutter Home White Zinfandel. She might drink it out of politeness to the host, but drinking it would be an affront to her conception of herself and her integrity.

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However, questions concerning integrity are often closely connected to serious moral problems. So, for a different example, the Director of the C.I.A. is instructed by the President (not necessarily the current President) to blow up a building in D.C. and make it look like terrorists did it so that the President can declare martial law. Let us say that, in this scenario, there has been a rash of terrorist attacks in the recent past, and the American people, as manifested in public opinion surveys, are thirsting for revenge. The Director was appointed for her hawkishness on terrorism, and has repeatedly supported the use of deadly force in confronting terrorism abroad and on American soil. Nonetheless and in spite of her ideological commitments, she refuses to carry out the order because it affronts her commitments to constitutional government (in the American sense of the term). That is to say, she refuses because following the order and engaging in the action would be repugnant to her particular moral and other commitments and to her sense of who she is. She refuses, even though she is almost completely certain that the President will find someone happy to do it, which means that the outcome might be worse than if she had agreed to follow the order herself. In this scenario, she might also feel obligated to leak the plan and risk arrest or worse (indeed, we might feel that, if she does not do so, then her integrity is at odds with moral requirements). In any case, it is the case here that, even if the Director’s decision is based solely on considerations of her integrity, her commitments in this case are moral commitments and so the self-regarding character of her decision does not preclude its being considered as a moral decision. Thus, actions based on preserving one’s integrity are often, though not always, self-regarding actions which seem to invite moral judgment. Finally, questions concerning the nature of benefits and harms are often easily answered, but there are many hard cases that make distinctions concerning what counts as harm or benefit questionable. There are numerous examples of situations in which various sides disagree on whether harm or benefit, or unresolvable ambiguity or indifference is involved in valuation judgments. To offer just a few examples, most rule utilitarians claim that, if everyone acted upon act utilitarian principles, the world would be much worse than it is. So, when people only consider harms and benefits in a consequentialist way, people end up harming others more and benefiting others less. Conversely, deontologists claim that consideration of harms and benefits in a purely consequentialist way is foreign to moral valuation, while at the same time insisting that following

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rational rules concerning one’s conduct toward others is good. The deontological sense of the “good” is not exactly the same as the sense of “beneficial” used here, but it would be perverse to consider morality to be a suicide pact in which obedience to rules which are understood to be harmful to human beings trumps any other considerations. Nonetheless, the most important complication concerning valuation is that making judgments about what is beneficial and what is harmful to human beings is so difficult. Obviously, there are obvious harms like starvation, exposure, and torture, but even such obvious harms as slavery have been traditionally defended as beneficial (though not usually by the slaves). In any case, there are numerous examples of disagreements about what is actually valuable that are the direct results of disagreements about what is harmful and beneficial. So, for example, contemporary disagreements about the importance of religious liberty are often disagreements between those who believe that religions are harmful to human beings and those who believe that religions offer humans access to transcendent reality. Disagreements about gender dysphoria are as often as not disagreements about whether gender dysphoria is harmful to those who suffer from it, or beneficial and central to the gender dysphoric’s true identity. Orwell’s famous critique of colonialism focuses as often on the harm to the colonizers as on the harm to those colonized, rejecting the notion that colonialism was a benefit to the colonizers and rejecting the colonizers claim that it was a benefit to the colonized. Finally, Hegel’s famous explanation of the master/slave dialectic also radically reinterprets what is harmful in the case, claiming that slavery degrades the master who cannot be fully human without recognizing the essential humanity and, thus, freedom of the slave. Interestingly, then, the complexity of valuation itself can be understood to support a pluralist understanding of human values insofar as the pluralist rejects the reduction of valuation to a single and simple value.

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Incompatible Values

The mere existence of plural values does not necessarily involve a rejection of moral monism, but the existence and persistence of conflicts between values does raise important questions about the possibility of any SDP that would effectively and conclusively resolve all conflict. A conflict between values arises when two or more values are realizable or two or more disvalues are avoidable, but any choice made will leave some possible

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values unrealized or some possible disvalues un-avoided. The conflict need not be completely rationally irresolvable, but any decision made in a situation in which there is a real conflict of values will leave some value unfulfilled. But what is the source of these conflicts amongst plural values? Given the plurality of human values mentioned above, it should not be surprising that there are multiple sources or types of conflicts between different sorts of values. First, there are conflicts between moral values themselves, including conflicts between the kind of primary values that are common to all moral systems, like the value of protecting innocent life, the value of healthy food, clean air, clothing, and shelter, on the one hand, and the values or virtues common to moral systems, such as honesty, courage, charity, and justice. Conflicts between honesty and charity are common (e.g., when one’s wife asks “Do I look fat in this dress?” or when one’s husband asks “Do you think that this comb-over is a good look?”), as are conflicts between justice and mercy (e.g., should we bring the full weight of the law down on the heads of the very poor who steal food to survive? Should governments charge illegal aliens for breaking immigration laws when they are doing so in order to escape tyrannical regimes?). There are even conflicts within values, so, though loyalty is a primary value, the question of to whom one owes loyalty in situations where conflict occurs is not always easily answered. Should one’s first loyalty be to those with whom one shares a special relationships, like a spouse, a parent, or a son or daughter, or is one’s loyalty really due to one’s fellow human beings as human beings? Although most would answer that the former group has a special call on a person’s loyalty, the difficulty still remains because most people have multiple special relations which might conflict with each other, with the most obvious conflict occurring between the loyalty that one owes to one’s parents, one’s spouse, and one’s children. More extreme examples can be found. “Dirty hands” conflicts arise in circumstances in which individuals are faced with decisions in which any choice taken will violate a primary moral value. These situations often result from previous immoral actions, sometimes taken by the actor herself.12 However, some situations arise in which any choice made will 12 Stocker limits “dirty hands” discussions to those situations in which the individuals involved are forced to participate in the immoral acts of others, but, even if the individuals involved are partially or wholly responsible for the “dirty hands” situation, the fact remains that the situation necessitates a judgment which will result in an immoral action, so I will

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be immoral, yet the choice has to be made, but the circumstances of choice are not brought about by the person’s earlier immoral actions. The famous example from the novel Sophie’s Choice in which a women is forced by a concentration camp guard to choose which of her two children will be murdered is an ideal example of an innocent agent being forced to participate in an evil choice. Sophie is told that, either she makes the choice, or both will children will be killed. Another example involves the Chernobyl nuclear disaster in which Soviet government officials had to decide whether to force workers into a highly radioactive area, almost certainly condemning them to death, in order to contain the radioactivity, or to allow the situation to deteriorate significantly and leave perhaps hundreds of thousands dead. There are also “dirty hands” cases in which the person is in a difficult situation because of his own actions, but, still, the situation presents a choice in which the person will have to violate a primary moral value. So, a fully made member of the Mafia who decides to turn on his fellow Mafia members is making a decision which satisfies the requirements of justice and may save innocent lives, but most certainly will violate some of the moral virtues (e.g., honesty and loyalty) which make social life possible. A repentant Don Juan who abandons a mistress and child in order to become a better husband to his legal wife and a better parent to his legitimate children is still neglecting values like personal responsibility and loyalty which characterize family life. Indeed, any person who has been living an immoral life will have to violate certain values in order to straighten out that life. A person with what Stocker calls “culpable inabilities” will almost certainly have to abandon friends, family members, and others with whom he had previously associated in order to live a more morally adequate life.13 The reality of these sorts of conflict call both “dirty hands” situations. Michael Stocker, Plural and Conflicting Values (Oxford: Clarendon Press, 1990) 9−36. 13 Stocker, Plural and Conflicting Values, 96. Predicaments of one’s own making are not given a lot of attention in moral philosophy, but Stocker notes that situations of “culpable inability” are interesting because they often lead to a conflict between action-guiding and non-action-guiding evaluations. For example, Rob borrows a substantial amount of money from his friends Rhett and Bill, and then goes out and gambles most of it away. He has some money left over and can afford to pay back one of the two, but not both. He ought to pay both of them, but, since he cannot, telling him that he ought to pay both is a non-action-guiding evaluation. He also ought to pay one or the other of them with what he has left over. This latter is action-guiding. For the distinction between action-guiding evaluations and non-action-guiding evaluations, see Stocker, Plural and Conflicting Values, 95−123.

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also explains the rationality of human regret. Moral monists cannot offer an account of real regret because they reject the rationality of conflict itself. For monistic moralists, regret is never rational because, if one has followed the decision procedure correctly, one has done the best that one can do in any particular situation. However, if conflict is real, then regret, especially in “dirty hands” situations, is perfectly reasonable.14 The logic of regret is a bit more obvious when two or more values or goods are at stake (e.g., rescuing one’s daughter from a burning building instead of rescuing one’s wife), but value pluralism can claim once again that it is more aligned with actual human experience than moral monism.15 Second, there are conflicts between primary values and other moral values that are not as central to human well-being or as universally accepted. These conflicts can normally be resolved by reference to the importance of the primary value. However, this is not always the case. For example, a healthy diet is a primary human value, as human beings have to eat in order to survive, but violations of norms about eating in particular places or at particular times (e.g., in the middle of Mass or in the middle of class) can override the human concern for gustatory satisfaction, especially if the person who wants his Cobb salad is not on the verge of starvation. The primary value has to be authentically challenged by the secondary value or else other considerations might be relevant. Even then, it is often the case that individuals sacrifice their lives, a central primary value, for ideals or principles that are not necessarily primary values and sometimes not even moral values. The tradition of dueling exemplifies an institution in which primary values are sacrificed in order to preserve values such as honor or family reputation which are not necessarily primary. Third, non-primary moral values often conflict, and there is no obvious hierarchy of non-primary values nor is there a single non-primary moral value that outweighs all other considerations in these situations. So, what are these non-primary moral values and where do they come from? As 14 Bernard Williams points out the significance of regret for monistic moral theories in several essays, the most important ones being Bernard Williams, “Moral Luck,” and “Conflicts of Value,” Moral Luck: Philosophical Papers: 1973−1980 (Cambridge: Cambridge University Press, 1981) 20−39, 71−82. 15 Robert Frost’s poem “The Road Not Taken” is usually interpreted as a tale of intellectual independence, but it can just as easily be read as a poem about the tragic character of even the most inconsequential decisions, and the inevitable regret that accompanies such decisions.

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Aristotle noted, human beings are exceptional in that it is natural for them to be artificial. That is, humans have common primary needs and there are primary values necessary to the flourishing of any human community. However, these primary values do not specify the beliefs, principles, values, or institutions that are necessary in order to achieve them, and so it is natural for human beings to create specific ways of life for themselves and their communities which differ significantly from the ways of life of other distinct communities. Thus, it is natural for humans to create a diversity of secondary moral beliefs, principles, and institutions, and it is natural that these do not form any coherent whole. For example, one primary human value is the production, education, and healthy raising of new generations of human beings. The definition of what is an acceptable family form, however, has varied widely between civilizations, and within civilizations over time. The West in the twentieth century has redefined the family in extraordinarily radical ways, conceiving family life more often than not in terms of the voluntary associations of contemporary liberal democracy. This has led to significant conflicts between traditionalists, who often make religious as well as moral claims about the proper family structure, and radicals who tend to speak of family life in the language of contract and erotic love. Another primary value for human beings is having access to healthy nourishment, but, like the varieties of family structures, there are innumerable types of diet that serve humans perfectly well. For example, the dietary requirements of Judaism, Islam, and Christianity differ in significant ways, but, from an external point of view, the conflicts between them do not lend themselves to simple rational solutions, especially when new quasi-religions like veganism are considered alongside them. These requirements partake of both a moral character because they play a part in constituting what it means to be a member of the community, and also a religious character because they are connected to what certain human beings believe themselves to owe to God or gods or a deified Nature. Further, there are conflicts between different types of moral considerations. Human beings have general obligations to respect the rights of others, they have obligations to consider the consequences of their actions, and they have specific or special obligations to others based on both voluntary and nonvoluntary characteristics of their lives. That is, deontologists are correct in emphasizing the general obligations that any adult human being has to other humans qua their humanity, and utilitarians are correct in emphasizing that humans should consider the

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consequences of their actions, even when they believe that they are obligated to perform them from a deontological standpoint. However, both neglect the special sort of obligation that individuals have to their close relations (e.g., friends, lovers, spouses, parents, grandparents, children, cousins, et al.), and, just as importantly, they neglect the special obligations that humans have to those with whom they have voluntarily entered into obligatory relations (e.g., business partners, employers, employees, members of interest groups or religious organizations, fellow football fans, et al.). It is often the case that a person’s special moral obligations will or should outweigh other considerations based upon general and impartial obligations to other humans and/or consequentialist calculations. When considering whether to donate her salary to Oxfam or to feed her children, a woman (at least, a women in the Western world) should certainly take into account that the children are the result of her choice, and, thus, she has a special responsibility for caring for them. And, of course, children generally owe their parents something like respect and, perhaps even, support in their dotage, especially if the parents took care of the children. If, on the other hand, a person has agreed to perform certain legal financial services for another person and, thereby, entered into business with that other person, and subsequently learns that the other person is using these funds from their partnership to support the local meth lab, then that first person might reasonably take both consequentialist and deontological considerations into account in refusing to perform his special obligations to his seedy partner. Fourth, there are conflicts between moral and nonmoral values, the latter values including the values of perfectionism, personal projects/integrity, personal self-interest, and religion. So, there are conflicts between moral values and the values of human excellence. For example, Rhett places high value on the excellence of classical music and is especially fond of Wagner. Rhett is an amateur vocalist and can play the piano, but he recognizes that his commitment to musical excellence does not involve his achievement of it as much as his enjoyment and support of it. Rhett is also concerned about poverty in the developing world and has even read a few essays by Peter Singer. He understands the conflict between spending his money on an institution that is, almost by definition, elitist and not easily accessible to the hoi polloi, and donating that money to charities which will feed the poor. Nonetheless, he is not convinced that human excellence should be sacrificed, even for the sake of primary moral values like the preservation of life. In fact, it is often the

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case that perfectionist values overlap with the values of personal projects and special moral obligations. So, Rhett’s commitment to excellence in music might also be central to his own conception of himself as an individual, and it is quite likely that his commitment will at some point result in the creation of special obligations on his part (e.g., he pledges a large sum of money to support the Houston Opera’s production of Der Ring des Nibelungen, or creates an endowed scholarship at the Shepherd School of Music at Rice University). These perfectionist values also often involve conflicts of value between particular professions and pursuits and the values of being a decent human being. For the spy and the politician, duplicity, ambition, and the willingness to engage in questionable behavior to advance goals are all central to success. For the scholar, the disinterested pursuit of truth and the lack of concern for particular moral or political commitments define the nature of the work. For the partisan activist, a passionate commitment to the mission whatever it may be and a lack of concern for the truth are manifestations of authenticity. The appellation “an admirably immoral person,” as represented by Gaugin and other artists who lived reprehensible lives but produced great art, could also be applied to scientists or historians or statesmen or spies.16 Perfectionist goals often conflict with moral values, and it is not obvious that such goals should be disregarded because of the conflict. Further, conflicts between moral and nonmoral values often result from the importance of personal projects and these personal projects often elide the distinction between moral and nonmoral considerations. So, for example, Rob is a great admirer of Cormac McCarthy, and is writing a book on the author. There are various scenarios that could be imagined in which Rob has obligations to others (e.g., he promised to have lunch with colleagues; he has a faculty meeting and is the chair of the department; every week, he spends time with his invalid mother; every week, he spends time with a lover; he has an appointment with a student; etc.). McCarthy happens to be in town and available for an interview at the same time that he has any one of these obligations. The conflict is real, but it is not obvious that Rob should allow the moral values of any of his obligations to trump his own personal commitments. In this case, I 16 For an examination of admirable immorality, see Michael Slote, Goods and Virtues (Oxford: Clarendon Press, 1983) 77−107. For discussions of Gaugin, who seems to be the most popular artist among contemporary moral philosophers, see Stocker, Plural and Conflicting Values, 37−49 and Williams, “Moral Luck,” 20−39.

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do not believe that the scenario would be one in which the considerations of his personal project would necessarily be a moral consideration, primarily because of the almost complete overlap of personal project and self-interest here.17 Finally, religious values often conflict with moral values. As suggested above, the relationship between human beings and God/the gods/a transcendent power/deified Nature is not moral according to the specific conception that I am using. What people believe that they owe to God may conflict and often override what they believe that they owe to their fellow human beings. The (non-consummated) sacrifice of Isaac by Abraham is an obvious example. Another would be Eric Liddell who, citing his beliefs about honoring the Sabbath, refused to participate in the 100 meters sprint final and, more importantly for our purposes, the 400 meters relay final in the 1924 Olympics. The British finished third in the relay, a race that they almost certainly could have won if Liddell had run. Liddell, however, was not criticized for choosing to honor what he understood to be his obligation to God instead of his obligation to his fellow British Olympians. Religious values, such as those manifested by Liddell and Abraham, also often overlap with perfectionist values and with the values of personal projects. Fifth (and because of the variety of conflicts mentioned above), there are versions of good lives that are incompatible with each other, so that no single version can include all of the things that humans’ value. Pace Aristotle, there is no single human telos, but an abundance of miscellaneous, contradictory, and incompatible kinds of good lives. For example, the distinctive goodness of friendship, family life, or excellence in one’s career is self-evident, but, because of the limitations of time, these various forms of good lives are also self-evidently less than completely compatible with each other. The time and effort that it takes to be successful in one’s career may make maintaining meaningful friendships impossible and vice versa, and both activities may limit one’s capacity to develop one’s capacity as husband, wife, father, or mother. In a similar fashion, being a neurosurgeon, being a concert violinist, and being a professional ballerina are obvious examples of good lives, but it is almost impossible for one person to achieve them all. The artistic devotion to self-creation and the 17 Since moral monists generally admit that self-interest can and does conflict with moral considerations (indeed, many suggest that self-interest is the only non-moral value at all), I will not expend any time dealing with these sorts of conflicts.

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communitarian devotion to tradition seem obviously incompatible, as do the independence and objectivity of a scholar and the passionate devotion to a cause of the partisan. Thus, the dream of a single, unified version of the good life is unrealistic and should be recognized as such.

3

The Incommensurability of Values

The fact that many legitimate or authentic human values conflict with or are incompatible with other legitimate or authentic human values undermines the claims of deontological moral philosophy. Deontological moral systems, like those proposed by Alan Gewirth, claim that all moral values, in this case duties and obligations, can be completely, consistently, and coherently derived from a single value or rule. However, if moral and other values conflict and there is no single rule that can both encompass all values and rank them, then deontology as a monistic account of morality is inadequate. Further, the incompatibility of values also undermines classical teleological ethics, which is dependent on a unified and hierarchical set of virtues or values all achievable by human beings, or at least a few of them. If virtues/values conflict and there is no single rational hierarchy, then the singleness of the teleological approach fails, as humans cannot achieve all values or virtues. Finally, rule utilitarianism is dependent on the smooth functioning of intuitive moral rules. However, if there is constant conflict between rules, then the rules cannot function properly, and the rule utilitarian jettisons her concerns with rules and falls back on act utilitarianism. Act utilitarians can deal with conflict between values, and they do so by reducing all values to one single measurable value. Thus, if conflict exists, the act utilitarian resolves it by comparing the value of standards or options in terms of a single overriding value, most often pleasure or preference satisfaction. Indeed, as discussed in chapter two, the practical and theoretical adequacy of monistic versions of act utilitarianism is dependent on a SDP in which all moral and nonmoral values are subsumed under a single overarching value. The viability of monistic utilitarianism presupposes a hard or concrete commensurability between all values. However, values are not only often incompatible, they are also often incommensurable.18 This means several things, but, most importantly, 18 There are differences between the paired terms “commensurable/incommensurable” and “comparable/incomparable.” “Commensurability” usually refers to the fact that two

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it means that there is no single, universal, impartial, and impersonal common measure by which all values can be compared.19 Therefore, there can be no SDP for determining in every case which standard of value or which object of value is more valuable than others. Is Rothko better than Mahler, Proust better than Le Corbusier; fly fishing better than roller-skating; bears better than tomatoes; baseball better than Julius Caesar; liberty better than equality; etc.? One does not have to claim that there is radical or extreme incommensurability between values in order to reject the claims of complete commensurability connected with monistic utilitarianism.20 One can, for example, make reasonable comparisons according to a covering value specific to the comparison.21 So, if a person were asking the series of questions above, then, one approach would be that we should clarify the terms of comparison. Are we comparing Rothko and Mahler in terms of painting or composing ability; Proust and Le Corbusier in terms of writing or designing; fly fishing and roller-skating in terms of getting dinner or getting exercise; etc.? If we are, in fact, comparing in terms of some covering law, then the above values are not

or more things are comparable according to a more or less precise measurement, while “comparability” refers to the possible of any sort of reasonable comparison. For my purposes, I will use them synonymously, because a reasonable value pluralism can account for and accommodate all sorts of comparisons, but rejects the notion that there can be a single universal and all-encompassing value that is the basis of all comparison. Further, the latter paired term will be “comparable/non-comparable,” as the term “incomparable” has a meaning in common English usage which makes it misleading in this case. It does not mean “not comparable” but, instead, means “better than anything else.” For example, the album title The Incomparable Cole Porter suggests, not that Cole Porter cannot actually be compared with other songwriters but that he is better than them. A similar connotation can be found in the title of the Prince song, “Nothing Compares 2 U.” 19 It also means that there is no summum bonum or highest value by which values can be measured, such as the Platonic form of the Good. Since moral systems based upon such a summum bonum are often if not always dependent upon the kind of radically transcendent metaphysics which is rarely accepted by modern philosophers, I will not treat this claim. For a brief examination of it, see Kekes, Moral Pluralism, 63−66. 20 Few people make the argument that all values are radically incommensurable. Postmodernist thinkers like Richard Rorty who embrace radically relativist epistemological theories are the exception. See Richard Rorty, Contingency, Irony, and Solidarity (Cambridge: Cambridge University Press, 1989). 21 For a discussion of the importance of covering values in making reasonable comparisons, see Ruth Chang, “Introduction,” Incommensurability, Incomparability, and Practical Reason, Ruth Chang, ed. (Cambridge, MA: Harvard University Press, 1997) 1−35.

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incommensurable. However, it is not always clear what the covering value in certain comparisons is supposed to be. If there is no covering value, then comparison doesn’t work, and, since there is no objective hierarchy of values, it is also likely that comparison between covering values will be just as incommensurable as comparing without covering values. So, is painting more valuable than composing ability, literature more valuable than architecture, getting dinner than exercising? These questions can be reasonably answered, but the answers will depend upon the context in which they asked, because they cannot be answered according to a single universal covering value. It is also the case that two or more values are incommensurable under a specific comparison measure if the values cannot be compared under the measure without significant aspects of the values being compared ignored or left out.22 This is one of the primary difficulties associated with the attempt to subsume all values under a single value. For example, pleasure is often proposed as the value that all values manifest, and, thus, the value which can be used as the ultimate measure of all other values. But pleasure itself is not a uniform measure, and, thus, different kinds of pleasure can be considered incommensurable because they cannot account for differentiations in the kind or quality of pleasure itself. Consider the various sources of value and the various kinds of pleasure associated with them. There are perfectionist pleasures, like experiencing sunset on the Gulf of Mexico, seeing a grizzly bear in Glacier National Park, visiting the Rothko Chapel, attending a performance of Ravel’s String Quartet, reading Larkin’s poetry, or studying the theory of relativity. Some of these pleasures are sensual, some are aesthetic, and some intellectual, but they are also interestingly vicarious in that the person experiencing pleasure had nothing to do with creating the object of the pleasure. In contrast, the pleasures connected with one’s personal projects, one’s special moral commitments,

22 Fred D’Agostino refers to this as comparison by reduction, a strategy by which other aspects of the thing measured are eliminated from consideration (e.g., to paraphrase Oscar Wilde, markets know the price of everything and the value of nothing). David Wiggins also refers to this sort of incommensurability when he writes that commensurability necessarily involves “a comparison in respect of everything that matters about either A or B,” and that the comparison fails if there is a “residue” of value not accounted for in the comparison. Fred D’Agostino, Incommensurability and Commensuration: The Common Denominator (Aldershot, UK: Ashgate, 2003) 5 and David Wiggins, “Incommensurability: Four Proposals,” Needs, Values, Truth: Third Edition (Oxford: Clarendon Press, 1998) 359.

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and one’s general moral commitments are intimately connected with one’s active participation in completing the action under consideration. Completing a PhD or building a log cabin, being a good parent or being a good friend, being honest or refusing to compromise one’s integrity, and acting for the benefit of others are all examples of values which give pleasure (when they do) and involve the agent in the creation of the pleasurable situation itself. The involvement of the actor in the creation of the pleasure-giving action makes the pleasure of writing a novel qualitatively different than that of reading a novel, just as the pleasure involved in helping a friend is qualitatively different than the pleasure of being helped by a friend (I believe that the pleasure of being helped by an enemy is also qualitatively different than being helped by a friend, but that is a different sort of comparison.) There are other sorts of stark differences in kinds of pleasure. The pleasure of the gourmand is quite different than the pleasure of the ascetic (if one is inclined, as utilitarians are, to consider the life of the ascetic in terms of pleasure). The pleasure experienced by a mother during childbirth is not the same as the pleasure of a father during childbirth. And, of course, the pleasure of Socrates unsatisfied is different than the pleasure of Nicholas Wood, The Great Eater of Kent, satisfied. Thus, if pleasure is the measure, one would still need to know what kind of pleasure is under consideration. Mill’s distinction between higher and lower pleasures makes the same point, and, given that the higher pleasures are pleasurable in a qualitatively different way than the lower, his argument undermines the possibility that pleasure itself can be used as the single measure of value. It is also obvious that many human values are not only not pleasant but often downright painful. Being brutally honest to one’s boss, punishing one’s children, compromising with one’s foes, ending a relationship because of the infidelity of the other, and advancing on enemy lines under fire are all examples of morally valuable actions that not only cause pain to the actor but to those affected by the action, and, thus, judging these types of actions in terms of their maximization of pleasure is akin to judging the quality of golfers by their height.23

23 Another example of a supposed value that might be used to rank all other values is

monetary value, and it is used in common cost/benefit analyses. However, though a cash value can be placed on just about everything, that cash value leaves out of consideration significant aspects of the values of whatever happens to be under consideration. Rhett can sell his baseball card collection, but the price that the collection will bring will not include his own special affection for the collection or his memories of collecting. And it may be

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The term “incommensurability” can also refer to the notion that two standards of value or objects of value are incommensurable if they are neither better than, worse than, nor equal to each other in terms of some covering value.24 Conversely then, standards or objects are commensurable if they are comparable according to a single, nonarbitrary metric. For example there are hard measures like height, weight, and distance which allow for concrete and conclusive comparisons of seemingly disparate objects. (e.g., Shaqille O’Neal or the Eifel Tower in terms of height; John Goodman today or John Goodman ten years ago in terms of weight; and Paris or the Moon in terms of distance from Madison, Wisconsin). Comparisons of this sort can also be made with a standard, which can be the mean of similar things or just a stipulated standard (e.g., is Shaq tall?; is John Goodman heavy today?; is it far to the Moon? where “tallness,” “heaviness,” and ‘far-ness’ are standardized). The attraction of such hard or concrete measures is that they offer impersonal, impartial, and objective standards, and result in a universal consensus about such judgments. The attraction of easily measured ‘values’ such as height, weight, and distance explains why many people believe that judgments about values which are not similarly objective are purely subjective.25 One example is the contrast between the way in which the Olympic results in the track and field competitions, with their hard measurements, and the figure skating results, with their soft measurements or evaluations, resonate with the public. There are relatively few controversies in track

true that everyone has a price but the purchase does not include the person’s integrity, which by definition cannot be bought. 24 Joseph Raz writes that “A and B are incommensurate if it is neither true that one is better than the other nor true that they are of equal value.” Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986) 322. Some who write about incommensurability, like Joseph Raz and Ruth Chang, limit their concern to comparisons of objects or bearers of value (e.g., apples, courageous actions, Bach harpsichord concerti), while others, like David Wiggins, are interested in comparisons of standards of value (e.g., nutrition, courage, aesthetic enjoyment). Since both objects of value and standards of value can be incommensurable, I do not exclusively focus on either category. 25 Martha Nussbaum claims that Plato’s (or the character Socrates’) acceptance of hedonism in the dialogue Protagorus is directly connected to his need to discover an objective measure of value, and she attributes this desire for objectivity to modern utilitarians. She writes that “the central motivation towards hedonism is a need for commensurability in order to deal with messy deliberative problems.” Martha Nussbaum, The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy, Updated Edition (Cambridge: Cambridge University Press, 2001) 112.

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and field (other than those dealing with performance enhancing drugs), while the general public reacts with consistent disdain toward the judges and judgments in figure skating, at least when their favored contestant loses.26 Unfortunately for those obsessed with measurement, many if not most of the moral and nonmoral values to be compared, either as standards or options, are not amenable to exact measurement or, in some cases, to measurement at all. The latter is especially true of generic comparisons, which ask ‘better than/worse than/equal to’ questions. These sorts of questions are often framed in such a way that they certainly appear to be unanswerable (e.g., Is chalk better than cheese? Is the tallness of Shaquille better than the heaviness of John Goodman? Is cricket better than motor racing?) Each could be re-cast in a way that makes the comparison rather easy (e.g., chalk is better in terms of writing on blackboard; the tallness of Shaquille is better in terms of playing basketball; cricket is better in terms of avoiding pollution). Even generic questions can be answered within the context of evaluations internal to specific practices. Within the practice of baseball, classical music, or art, the standards of evaluation are standards which represent the consensus of those with expertise or connoisseurship in the field. So, there are few problems with stating that Mike Trout is better than Delino DeShields, that Mozart is better than Salieri, or that Matisse is better than Warhol. Of course, problems arise even within practices when the case is not as clear (e.g., Is Mike Trout better than Justin Verlander? Is Mozart better than Beethoven? Is Matisse better than Picasso?), and the case can never be completely clear without a hard measure of value. The problem becomes more acute, however, when comparisons are made between standards or objects across practices because there are no such relatively stable standards of judgments between fields. So, asking who was more creative, Pollack or Messiaen, brings to the fore this final type of incommensurability. Both were enormously creative, and thus meet the standard of creativity, but there is no obvious way to judge which one was better or worse, and it seems perverse to say that they were equally creative or creative in the same way (is introducing birdsong to symphonic composition more creative than the creation of the drip technique?) That is to say, both Pollack 26 This disdain, at least on the part of Americans, has lessened a bit since the end of the Cold War, during which it was quite normal for American sports fans to blame the poor results of American athletes on “the Soviet judges.”

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and Messiaen were creative in their own particular ways and in their own particular traditions so that comparing them under the covering value of creativity is not possible.27 This form of incommensurability is connected to the characteristic vagueness, imprecision, or non-measurability of many value concepts.28 Finally, since values (both standards of values and objects of value) are plural, conflict with each other, and can be incommensurable, the commensurability of many or most standards of value or objects of value under specific covering values is not completely relevant to the claim that there is no single value according to which all values can be judged. Extreme incommensurability, understood as the notion that comparisons of values are always radically underdetermined, is not necessary to undermine the claims of monistic utilitarianism. Indeed, reasonable comparisons of values can be made in most situations, but these comparisons are not all based upon the same value metric. Soft incommensurability entails only the rejection of the monistic single value claim, and suggests that an alternative to the monistic conception of practical reason must be offered. And that is one of the subjects addressed in Chapter 4.

4

Conclusion

The things that human beings value and that are valuable, both moral and nonmoral, are various and plural, and often conflict with each other. There is no SDP, whether based upon a single principle or a common metric, which can rationally decide all conflicts of value. Values often are not reducible to a common measure of value nor are they encompassed by a single value with which they can be compared. Thus, moral decisions are almost always more complex than moral monists will allow, and conflict is not necessarily a sign of the irrationality of particular human 27 There are other types of failures of comparison, and comparison failures are often a source of humor. One example is the Saturday Night Live skit in which Chicago Bears Superfan Bill Swerski and his friends compare Mike Ditka to everyone and everything, with the usual conclusion being that Ditka is better than everyone and everything. The lone exception was that Ditka could be defeated by a hurricane if the hurricane were named Hurricane Ditka. 28 Regarding the elusiveness of some value concepts, Elizabeth Anderson notes that “the more a given scale of value encompasses very different categorically unranked ways of meeting it, the more scope there is for incommensurability.” Elizabeth Anderson, Value in Ethics and Economics (Cambridge, MA: Harvard University Press, 1993) 56.

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beings or particular groups of human beings, nor of unjust social institutions. Conflicts of values are inherent in human life, and they occur both between human beings and within individual human beings. These conflicts do not mean that moral judgments (or practical judgments) are purely subjective or relativistic, however. The existence of such conflicts does mean that a distinctive conception of practical reason is relevant to consideration of moral and other practical value conflicts, one that rejects the scientistic simplicity of the various forms of moral monism investigated in chapter one. In the next chapter, I will offer an account of practical reason which does not entail a novel SDP, but which does explain the reasonableness of practical judgments.

CHAPTER 4

Practical Reason, the Importance of Personal Commitments, Plans, and Projects, and the Minimum Content of Morality

Abstract This chapter examines the nature of practical reason, the centrality of personal or subjective commitments and purposes to choices about good human lives, and the minimum moral content of good human lives. The version of practical reason presented in this chapter involves a combination of the traditional distinction between reasoning about things subject to change and things not subject to change, a neo-Aristotelian conception of virtues and skills, and an emphasis on the particularistic or subjective character of valuation, both moral and nonmoral. Keywords Practical reason · Theoretical reason · Aristotle · F.H. Bradley · R.G. Collingwood · Michael Oakeshott · G.E.M. Anscombe · David Wiggins · Epistemological pluralism · Virtue · Projects

In this chapter, I examine the nature of practical reason, the centrality of the personal or subjective to choices about good human lives, and the minimum moral content of good human lives. The conclusion that human values are often incompatible and incommensurable suggests that a convincing account of value pluralism requires a different conception of practical reason than the conceptions offered by monistic moralities. Proponents of monistic conceptions of practical reason tend to model these conceptions of reason on the kind of reasoning associated with the © The Author(s) 2021 K. B. McIntyre, Nomocratic Pluralism, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-53390-8_4

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natural sciences and mathematics. Such conceptions posit that reasoning is a unity, so practical reasoning, like all reasoning is abstract, universal, objective, and impersonal. This kind of scientistic rationalism conflates practical reason and theoretical/scientific reason, thus, misconstruing the moral and nonmoral values of human beings, since these values are not abstractions, but are instead complex and often particular to specific individuals. Nonetheless, if a comparison between values, possible actions, and purposes is impossible, that suggests that there can be no rational choice made concerning values, purposes, or actions. As noted in Chapter 3, the claims about incommensurability do not need to be as extreme as some value pluralists suggest, but the rejection of any possible single decision procedure does mean that some alternative notion of practical reason is required. The version of practical reason presented in this chapter involves a combination of the traditional distinction between reasoning about things subject to change and things not subject to change, a neo-Aristotelian conception of virtues and skills, and an emphasis on the particularistic or subjective character of valuation, both moral and nonmoral.1 Practical reason concerns itself with things amenable to alteration, and, thus, does not allow for the precision and certainty associated with scientific and mathematical reason. The neo-Aristotelian approach to practical reason denies that such reason can produce rule-like formulations which cover all possible situations. Instead of developing deductive proofs in answer to moral and other practical questions, practical reason involves the development of connoisseurship, in which agents are habituated and initiated into various moral and nonmoral practices which condition and constitute the self-understood situations within which they make their intelligent or not-so-intelligent choices. Since these choices are also valued as choices by the specific individuals who make them, this subjective aspect of valuation leads to a decidedly more contextual conception of practical reason than is considered by moral monists who reject any sort of partiality in moral judgment.

1 The distinction between practical and scientific/theoretical reason can be found in

classical thinkers like Aristotle and Aquinas, but also in modern thinkers like Hegel and the British Idealists. My account of practical reason owes most, on the one hand, to the British Idealists, especially F.H. Bradley, R.G. Collingwood, and Michael Oakeshott, and, on the other, to Aristotle and neo-Aristotelians like G.E.M. Anscombe and David Wiggins.

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Because there is no single universal scale of values by which the choices of individuals can be measured and because individuals are understood to be pursuing their own conceptions of the good life, the value of the projects pursued by the individuals constitutes one aspect, and sometimes a significant one, of moral and other sorts of practical judgments. Indeed, when the demands of moral considerations put an individual’s central commitments and projects at risk of destruction, it is often reasonable for the individual to act on her commitments and projects instead of the moral considerations. Thus, complexity, conflict, and subjectivity are necessary and inevitable aspects of the practical life of human beings and cannot be dissolved by the creation of a quasi-mathematical decision procedure. However, the subjective aspect of practical reasoning does not have to lead to a purely relativistic conception of morality or valuation. Instead, there is a minimum moral content which any version of the good life or valuation must meet. This minimum or core morality is connected with a minimal conception of human nature. At the very minimum, it concerns the common biological needs of human beings for the preservation of life, such as food, shelter, clothing, clean air and water, etc., but there is also a thicker description of the generic minimal content of a good life which includes the recognition of the importance of intimacy and social life to individuals and groups. This core morality serves as a limit to what can possibly count as a reasonable account of the good life for human beings. Thus, value pluralism rejects both the one-sided objectivity of monistic morality and the one-sided subjectivity of relativistic morality.

1

Practical Reason

Aristotle distinguishes between reasoning about things that necessarily are what they are and cannot change, and reasoning about things that are not necessarily what they are and can change. He writes that “what is scientifically known cannot be otherwise…[while practical wisdom] is not scientific knowledge because what is known can be otherwise.”2 So, what characterizes practical reason is that its object is an inherently changeable world. The Aristotelian distinction between scientific and practical reason has been elaborated and extended by thinkers in both the classical and modern world, resulting in the claims of epistemological 2 Aristotle, Nicomachean Ethics, Revised Edition, trans. Roger Crisp (Cambridge: Cambridge University Press, 2014) 103, 105.

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pluralists that there are multiple, independent, and non-reducible ways of conceiving of and understanding the world (e.g., scientific, historical, theological/religious, aesthetic, practical, etc.) and that each of these ways has a distinctive logic of inquiry, explanation, reflection, and judgment.3 So, for example, one can ask a variety of categorically discrete questions about Mozart’s Don Giovanni: a physicist would be concerned with the acoustics or even psychoacoustics of the opera; a music/art critic would consider the aesthetic beauty of the music and story; a moralist might question whether it teaches an appropriate lesson about the dangers of lechery; a business person might wonder how much the original score is worth, while an entrepreneur might consider the possibility of putting on a profitable production; and an intellectual/art historian might be concerned with explaining the history of the composition of both the music and libretto or the history of the various productions of the opera. None of these sets of questions or directions of inquiry are improper, nor are they reducible to one another. Indeed, there is no single overarching way of considering the world around us which trumps all other ways of understanding. Nonetheless, it is not necessary to accept the various claims of epistemological pluralism in order to accept that there is a distinctive kind of reasonableness associated with practical reflection, judgment, and action. Practical reason concerns itself with things which are not necessarily as they ought to be. Indeed, the primary presupposition of practical reasoning is that the world is amenable to change, and this presupposition is not a weakness to be overcome but constitutes the characteristic disposition of the practical reasoner toward the moral and practical world. Reasoning about such a changeable entity does not and cannot achieve the same type of objective certainty that theoretical reasoning about things which are not changeable (e.g., mathematics) can and does

3 For a brief examination of the character of epistemological pluralism, see Amelie Rorty, “Varieties of Pluralism in a Polyphonic Society,” The Review of Metaphysics 44 (1990) 3– 20. For a more extended elaboration, see the special issue of The Monist devoted to the subject: The Monist 73 (1990) 335–478. See also John Kekes, Pluralism in Philosophy: Changing the Subject (Ithaca, NY: Cornell University Press, 2000); and John Kekes, The Nature of Philosophical Problems: Their Causes and Implications (Oxford: Oxford University Press, 2014).

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achieve.4 Nonetheless, practical reason does have a logic of its own and is directed at the world conceived in a particular way. The world as understood practically is a world which is unalterably alterable. This world can be contrasted with the world conceived historically, i.e., in terms of the fixed and finished nature of its pastness, or scientifically, i.e., in terms of its susceptibility to measurement or subsumption under uniform general laws.5 Because of the inherent mutability of the practical world, practical reasoning involves not only judgments concerning the facts of one’s situation (e.g., I have a meeting across town, and it is very hot today), but of value or evaluation (e.g., I do not enjoy hot weather, so I will drive, take a cab, or rent a helicopter; or, I will cancel the meeting so that I do not have to go outside; or, I like to feel as comfortable as possible, so today I will wear shorts and a t-shirt to the meeting; etc.). Individual judgments and actions require the assessment of situations in terms of “the facts on the ground” and in terms of whether these facts are satisfactory or not, i.e., whether they are valued and valuable. That is to say, human action consists of intelligent (or not-so-intelligent) responses to understood (or misunderstood) situations, as opposed to being the result of genetic determinants or a response to stimulation of the neurons. Intentional actions, which are the kind of actions I am considering, propose to change or preserve understood situations according to the variety of human valuations mentioned in Chapter 3 (i.e., special moral obligations, general moral duties, consequentialist concerns, the perfectionist values of intrinsic excellence, the specific values of personal projects, and the values of self-interest).6 So, we are confronted with the world as it is, but constantly strive to achieve

4 Aristotle states that “it is a mark of an educated person to look in each area for only that degree of accuracy that the nature of the subject permits. Accepting persuasive arguments from a mathematician is like demanding demonstrations from a rhetorician.” Aristotle, Nicomachean Ethics, 4–5. 5 The notion that there are radically different ways of conceiving the world informs the work of British Idealists like R.G. Collingwood and Michael Oakeshott. See R.G. Collingwood, Speculum Mentis, or The Map of Knowledge (Oxford: Clarendon Press, 1924); and Michael Oakeshott, Experience and Its Modes (Cambridge: Cambridge University Press, 1933). 6 Anscombe describes intentional actions as “actions to which a certain sense of the question ‘Why?’ is given application; the sense is of course that in which the answer, if positive, gives a reason for acting.” G.E.M. Anscombe, Intention, Second Edition (Cambridge, MA: Harvard University Press, 1963) 9.

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the world as it ought to be, at least, according to each of us. Even straightforwardly habitual actions display this characteristic of judgment, action, alteration, etc. For example, Julie is having a pleasant night’s sleep when she is awakened by her alarm clock at 6.30 A.M. For Julie, this is an unpleasant situation for various reasons (e.g., she is quite sleepy, the alarm is quite loud, she has a bit of hangover), so she acts by getting out of bed and turning the alarm off. The situation is still not satisfactory because she realizes that she has to be at work in a short while. She can, of course, call in sick and go back to bed, or just go back to bed without attempting to excuse her absence. She could, in fact, quit her job so that she does not have to hear the alarm clock each morning. However, she doesn’t consider not going to work because she is a successful epidemiologist and enjoys her work. She is also a widow with two young children and has special obligations to care for them. Further, she believes that she has both a general obligation to help others by curing diseases and that the positive consequences of her going to work significantly outweigh the positive consequences of sleeping in for the day and, of course, the negative consequences of losing her job also factor in directly to her decision. Finally, she appreciates the excellence of her and her colleagues’ work, and also enjoys the personal prestige that comes with the job. It is, of course, unlikely that Julie thinks of all or any of these things when the alarm goes off every morning at 6.30, but the habitual character of her actions does not mean that she either has not or would not justify her actions in these ways because just getting out of bed in the morning is a significant human action. Thus, practical activity is characterized by the attempt to alter existence by producing and preventing change. Both the production and the prevention of change involve continual and continuous activity which results in the alteration of the given practical world.7 Because of the mutability of the world when considered in a practical way, the world of practical fact is distinguished by its inherent instability. This is one of the reasons that practical reflection or deliberation cannot issue in demonstrative deductive conclusions. Indeed, the practical syllogism differs from

7 Berlin observes that “every solution creates a new situation which breeds its own needs and problems, [and] new demands.” Isaiah Berlin, “The Pursuit of the Ideal,” The Proper Study of Mankind: An Anthology of Essays, Henry Hardy and Roger Hausheer, eds. (London: Random House, 1997) 12.

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the normal deductive one because it is an idealized description or explanation of possible relevant reasons for acting in a particular way. It is not a blueprint for action and it does not involve entailment.8 Reasons are persuasive, not demonstrative. In the example above, Julie has reasons for going to work (she also has reasons for not going to work, but they are not nearly as important to her). She does not, however, possess a deductive schema which could be consulted in order to offer demonstrative proof that she should, or should not, go to work. Indeed, Julie’s reasons might not be persuasive to Miranda, who, despite also being an epidemiologist in the same lab, does not enjoy her work, has no family, is pessimistic about the success of their project and thus does not believe that the consequences of her work will be positive, and has developed suspicions about the safety of the lab itself (though the lab is not in Wuhan). There are other factors that contribute to the inherent uncertainty of practical reasoning. It is almost always the case that human action involves interaction with other human beings, who are also attempting to change their worlds to suit themselves. In the example above, if Julie and Miranda are working together on a project that Julie feels is important and Miranda considers a waste of time, then the choices and actions made by each will have a significant effect on the success of the choices and actions of the other. Miranda’s indifference and unhappiness may create conditions which alter Julie’s plans significantly, while Julie’s commitment and hard work might impress Miranda to the extent of changing her judgments about the situation. There are also multiple dimensions of choice that occur whenever human beings act in one way or another. 8 Anscombe notes that “if Aristotle’s account [of the practical syllogism] were supposed to describe actual mental processes, it would in general be quite absurd. The interest of the account is that it describes an order which is there whenever actions are done with intentions.” She also observes that “there is no general positive rule of the form ‘Always do X’ or ‘Doing X is always good—required—convenient—, a useful—suitable— etc.—thing’ (where the X describes a specific action) which a sane person will accept as a starting-point for reasoning out what to do in a particular case.” Universals in practical life are not at all like the universals associated with scientific reasoning and the deductive syllogism. Anscombe, Intention, 80, 62. Both John McDowell and David Wiggins offer similar accounts of the character and purpose of the practical syllogism. See John McDowell, “Virtue and Reason,” Virtue Ethics, Roger Crisp and Michael Slote, eds. (Oxford: Oxford University Press, 1997) 155; and David Wiggins, “Deliberation and Practical Reason,” Needs, Values, Truth: Third Edition (Oxford: Clarendon Press, 1998) 229–233.

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For example, what might be a reasonable diet for a healthy person might possibly be a dangerous diet for a person with diabetes. What would be an appropriate intimate life for a married couple would not be so for a Catholic priest or nun. What might be considered humorous rodomontade in a locker room would be adjudged extraordinary rudeness at a funeral. And what would be a perfectly reasonable decibel level for someone’s stereo during the daytime would be considered a disturbance of the peace at 2.00 A.M. So, questions about the person doing the action, the place of the action, and the time that the action takes place, among other things, also complicate practical deliberations.9 So, if uncertainty lies at the heart of practical activity, how do practical decisions get made? How is practical knowledge acquired? And what is the connection between practical knowledge and moral knowledge? Practical reason involves “knowing how” to do things, and is not reducible to technical formulation.10 It involves the capacity to understand correctly the circumstances or context of a situation and act accordingly, i.e., doing the right thing, at the right time, in the right place, in the right way. This “situational appreciation” is acquired throughout a person’s lifetime, and varies according to the person’s values, abilities, and character.11 Thus, making intelligent or cunning or bizarre or stupid practical judgments is not the result of an occult phenomena occurring within the skull, but is a manifestation of the capacity or incapacity to complete successfully any activity, whether it is translating Homer, composing a sonata in B minor for harp, running the Boston marathon, or dealing with one’s inlaws. In contrast to “knowing that,” which can be defined as knowledge that is susceptible to being fully and explicitly articulated, either as a fact or set of facts, as a theorem or hypothesis, or as a rule or set of rules,

9 Aristotle lists several considerations that relate to judgments about correct actions: is the action proper “in relation to the right person, in the right amount, at the right time, with the right aim in view, and in the right way”? Aristotle, Nicomachean Ethics, 35. 10 Gilbert Ryle makes the distinction between ‘knowing how’ and ‘knowing that’ which is central to this part of the argument. See Gilbert Ryle, The Concept of Mind (Chicago: The University of Chicago Press, 1949) 25–61. 11 ‘Situational appreciation’ is a term used by David Wiggins to describe the aspect of practical reason concerned with what Aristotle calls perception. Wiggins also notes that “few situations come already inscribed with the names of all the concerns that they touch or impinge upon [and] it is the essence of these concerns to make competing, inconsistent claims.” Wiggins, “Deliberation and Practical Reason,” 231.

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“knowing how” consists in the capacity to engage in a practice intelligently or skillfully or successfully. One knows how to play chess, to ride a bike, to participate in politics, or to speak a language. “Knowing how” is knowledge that is not susceptible to complete and explicit articulation, but consists of capacities, dispositions, and skills. Thus, the judgments of practical reason, including moral judgments, have more of the character of connoisseurship than technical expertise or measurement, and there are no foolproof methods of getting things right. So, for example, there are connoisseurs of cookery, like Julia Child, or comedy, like Jerry Seinfeld, and there are connoisseurs of kindness, like Mother Theresa, or courage, like Audie Murphy. Within practices there will be different kinds of connoisseurship. A wine-tasting connoisseur might not be a winemaking connoisseur; a basketball-coaching connoisseur might not be a basketball-playing connoisseur; and a courage-in-battle connoisseur might not be a courage-in-politics connoisseur. Practical knowledge, then, arises from engaging in specific human practices, and knowing-how-to-get-along within such practices involves an immersion in the practice itself, whether the practice or set of practices is baseball, Catholicism, one’s first language, piano, philosophy, etc. An individual involved in any practice, whether it is playing the mandolin, building a woodshed, or conducting an experiment, understands a particular endeavor because of a commitment to and participation in the skills and expertise associated with that particular activity. Human beings are always and everywhere immersed in practices which existed before they were born and which condition the choices they make, which in turn reconstitute the practice itself. A chef doesn’t become a chef by reading a cook book; a violinist doesn’t learn how to play the violin by reading a music book; and an historian doesn’t become an historian by looking at history books. Each achieves her practical knowledge of how to do these things by participating in the practice of cooking, violin-playing, and historical research. One learns how to do something by doing it (e.g., one learns how to bunt by bunting, how to cook by cooking, how to do historical research by doing historical research, how to be kind by being kind, how to be courageous by being courageous, etc.). Practical activity does not spring from a premeditation of ends and means accomplished after a purge of the mind. The consideration of principles, ideals, and ends is a possibility which grows out of conduct itself. Projects are not formulated externally without knowledge of any particular practice, but are conditioned by traditions of activity, and problems present themselves

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only within the context of a particular activity. Education, even at the highest level, takes place on the model of the apprentice/master relationship, and the skills, capacities, and dispositions of the master are not acquired by the memorization of facts, but by the inculcation of practical “know how” by the master and the steady progress of the apprentice. At the same time that a person is acquiring the skills and capacities necessary to engage in the various practices that constitute the practical world, she is also engaged in a moral education which concerns the development of various virtues which are both instrumentally necessary for human flourishing and constitute an aspect of the good life for individuals.12 The internal goods that a person acquires by becoming habituated into various practices include both the skills and capacities specific to a particular practice (e.g., in baseball, the ability to hit a curve ball, hit the cut-off man, and lay down a sacrifice bunt) and the moral virtues general to human practices (e.g., the honesty to admit mistakes or tell the manager when one is injured, the courage to stay in the box when a 100 mph pitch is thrown at you, the pride to put forth one’s best effort, etc.). These goods are all learned and acquired simultaneously, so, though there are reasons to distinguish between nonmoral practical capacities, like practical skills, and moral practical capacities or virtues, they are learned in similar ways, and there is no way of learning to be virtuous except through participating in human practices.13 As suggested, virtues are habituated or learned capacities to understand what is important in any particular set of circumstances.14 Possession of 12 For an insightful account of the nature of moral education, see Sabina Lovibond, Ethical Formation (Cambridge, MA: Harvard University Press, 2002). 13 Aristotle associates skills with making things and distinguishes them from virtues, which are concerned with actions. However, skills are just as often concerned with action. A good soldier has to be courageous, but she also has to be effective with a gun or at flying a plane or at commanding a ship; a good harpist needs to be temperate, but he also has to be able to play the harp; a good athlete needs to be temperate and courageous, but also skilled at athletics. And some skills are generally useful in the way that virtues tend to be generally useful. For example, developing and having a good eye in baseball makes it likely that a person would also be a decent lacrosse player, and good hand-eye coordination is important in many other human activities. Aristotle, Nicomachean Ethics, 106. 14 McDowell suggests that a virtue is “an ability to recognize requirements which situations impose on one’s behavior. It is a single complex sensitivity,” while Foot observes that “those who possess…virtues possess them in so far as they recognize certain considerations (such as the fact of a promise, or of a neighbor’s need) as powerful, and in

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the various virtues provides a person with reasons for acting in a certain way. A kind person sees a situation differently than an unkind person, e.g., she notices that her co-worker is sad and not only sympathizes privately but asks if she can help in any way, while the unkind person doesn’t necessarily even notice the sadness of the co-worker. A courageous person sees an assault and immediately pulls her Glock out of her purse and makes a citizen’s arrest of the malefactor, while a cowardly person turns her head away from the scene. So, for example, courage can be understood as the capacity to understand what is to be feared and what is not, while temperance is the capacity to understand what is truly pleasant and when it is pleasant and how much of it is pleasant, etc. Prudence is the virtue most closely connected with practical reason, and it can be understood as the capacity to read a situation correctly according to all relevant factors, taking into account that values conflict and virtues often do so as well. The importance of the virtues lies in their capacity to assist and enable human beings to be successful in pursuing their plans, not only individually but as groups or communities, while also contributing to the intrinsic goodness of each human being as a human being.15 A good soldier needs to be brave, a good parent needs to be kind, a good teammate needs to be honest, etc., and a good community needs to be just, and good human beings in general need to be brave, kind, honest, and just. So, how do individuals combine their practical and moral knowledge, their skills and virtues, to come to practical judgments about action? As mentioned, a person’s projects, purposes, personal commitments, moral obligations, etc., arise from within the various practices in which the individual engages. Humans have reasons for engaging in particular actions, and these reasons are connected to the various sorts of values that human beings hold. Moral considerations play a role insofar as a person’s activities will generally involve and affect other human beings, so that person must consider her general obligations, her special duties, and the consequences of her actions, along with considering her own specific desires many cases, compelling reasons for acting. They recognize the reasons, and act on them.” McDowell, “Virtue and Reason,” 196; and Philippa Foot, “Does Moral Subjectivism Rest on a Mistake,” Moral Dilemmas and Other Topics in Moral Philosophy (Oxford: Clarendon Press, 2002) 144. 15 Foot notes that “virtues are in general beneficial characteristics, and indeed ones that a human being needs to have, for his own sake and that of his fellows.” Philippa Foot, “Virtues and Vices,” Virtues and Vices and Other Essays in Moral Philosophy (Oxford: Clarendon Press, 2002) 3.

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and personal projects. Practical deliberation and judgment concerning concrete actions take place within an already existing set of practices which inform a person’s situational awareness or appreciation, which is the context of deliberation and judgment. Both are habituated or learned capacities, like practical skills and moral virtues. So, questions like, do I swing at this 100 mph fastball or not; should I flatten the 3rd note on this guitar solo or not; should I rush into the burning building, save the person who is drowning, or perform CPR on the person who is not breathing or not?, are all properly understood as examples of practical consideration. Each is also an example of a situation in which deliberation, as it is normally understood as a time-consuming weighing of options and probabilities, does not really occur. The habituation of the skill of the hitter or guitar player and the habituation of the virtue of the courageous person who runs into the burning building or attempts to save the person drowning means that the skills and virtues of each have become so much an aspect of the person’s character that the temporal aspect of deliberation is foreshortened to a practically infinitesimal period of time. Indeed, what appears as a lack of deliberation in these instances is, in fact, partly probative of the fact that each person possesses the skill or virtue relevant to the situation at hand.16 In these sorts of examples, the person with the skill or virtue does what is right almost “naturally.” So, practical reasoning is a capacity that, unless there is serious and explicitly recognized conflict between values, does not require the type of deliberation normally associated with complex judgments. For example, the good pianist doesn’t deliberate about which note to play, the good carpenter doesn’t deliberate about which hammer to use, the good basketball player doesn’t deliberate about whether to drive to the basket or pull up for a jump shot, the courageous person doesn’t deliberate about saving the drowning person, the temperate person doesn’t deliberate about missing a deadline in order to attend a concert, the kind person doesn’t deliberate about complimenting someone, etc.

16 McDowell writes that “fully-fledged practical wisdom is a ‘situational appreciation’

that not only singles out just the right one of the potentially action-inviting features of a predicament, but does so in such a way that none of the agent’s motivational energy is enticed into operation by any of the others.” John McDowell, “Incontinence and Practical Wisdom in Aristotle,” The Engaged Intellect: Philosophical Essays (Cambridge, MA: Harvard University Press, 2009) 67.

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However, not all situations present themselves in obvious ways to individuals, and most individuals are neither skilled nor virtuous enough to act without reflective deliberation about possible options. In any situation, there will be an infinite number of ways to define the specific characteristics that are relevant to practical deliberation and judgment. Of course, in order to give rise to deliberation, a situation must be understood by the individual as amenable to alteration by action. Strictly speaking, it makes no sense to deliberate on things that we cannot change. So, we do not deliberate on whether 8 × 3 should equal 25 or on whether the sun should circle the earth, nor on whether we ought to be able to fly or to breathe underwater, nor on whether the Cowboys ought to win the Super Bowl. We can wish for these things, but that is why wishful thinking is generally considered to be impractical. Our situational appreciation will vary according to whether the situation is adjudged to be complex, novel, and involve conflicts between things that we value, or whether the situation appears simple and routine. It involves not only identifying relevant facts, but knowing one’s own abilities and inabilities, virtues and vices, and habitual dispositions. For example, a person who sees someone flailing about in the water might accurately judge that the person is drowning and needs help, while recognizing that, since she (the observer) cannot swim and is deathly afraid of water, it would be foolhardy and not courageous for her to attempt to save the person (she should call 911 or yell at the lifeguard). A professor who is asked to review a new volume in her area of expertise, but who recognizes her own almost irremediable laziness might consider it a reasonable and moral decision to reject the offer, despite the attractiveness of the subject matter and importance of the new publication. Indeed, one might judge that Professor Procrastinate would be acting immorally if she accepted, given her knowledge of the unlikelihood of her completing the project and, thus, delaying the publication of the review.17 So, a person’s limitations in skills or abilities will often make successful action difficult or impossible, and a person’s vices or lack of virtues will be similarly limiting. A person with a year’s worth of violin lessons is not a likely candidate

17 Michael Stocker uses this example to suggest that it is reasonable to take into account our actual character and the actual character of those with whom we interact, and not just an ideal character, in making practical decisions. Michael Stocker, Plural and Conflicting Values (Oxford: Clarendon Press, 1990) 95–102.

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for the first violin position in the local orchestra; a person whose beertasting experience consists of a daily consumption of a twelve-pack of Pabst Blue Ribbon will not be particularly useful resource for information about craft beer; a person who lacks kindness will not be a successful parent or spouse; and a person who lacks temperance will likely make a bad bar owner. Nonetheless, in any particular situation, different actors will inevitably consider different factors based upon their own skills and virtues (or lack thereof), even though these actors will, in general, be attempting to preserve aspects of the practical world that they enjoy and to change or alter what they do not. Finally, practical deliberation is not concerned solely with the discovery of technical means to our ends, but also with reflection on the adequate specification of the ends themselves. Practical deliberation seeks to answer not only the question, “how do I accomplish my purpose?” but also “what ought my purposes to be, what is a good life/good job/good time for me?,” in a way which recognizes not only my good but the good of others by taking into account moral values as well as nonmoral ones. In the next section, I examine the significance of an individual’s personal projects and commitments in constituting her particular version of a good life, offer an account of the minimum moral content of any version of a good life, and suggest that the importance of personal projects offers a sufficient reason to reject both the notion that moral considerations should always be impartial, and that moral considerations should always trump other nonmoral considerations.

2

Personal Commitments and Projects, Good Ways of Life, and the Rejection of the Overridingness of Moral Considerations What I have been offering in the book thus far and will complete in this section of this chapter might be called a theory of partialist moral pluralism as opposed to an impartialist moral theory, and a theory of partialist value pluralism as opposed to a theory which claims that moral considerations always override all other considerations. An impartialist moral theory is one which insists that all persons be considered impartially.18 In its extreme version, strict or simple act utilitarianism, it requires 18 I have offered a more extensive critique of utilitarianism and deontology in Chapter 2.

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an individual to consider the harms to and benefits for all affected persons of one’s actions. The result is a ubiquitous moral imperative to be beneficent which eliminates the possibility of any individual actually pursuing any sort of uniquely personal version of the good life.19 The more moderate Kantian version of impartialist morality allows for certain sorts of consideration concerning special obligations to friends and family, but they are allowed because they pass the generalizability test of all morality, not because they are intrinsically valuable.20 In contrast, a partialist moral pluralism recognizes that individuals not only have general moral responsibilities to others, but also have special and specific moral responsibilities to certain people because of their special and specific relationships to them (as noted, some of these can be comprehended by a Kantian “Golden Rule” common sense morality). These considerations can and often do outweigh considerations of consequentialism or deontology. Still, however, I want to insist that it is also sometimes the case that nonmoral considerations which concern personal projects and commitments can outweigh moral considerations, and I call this way of thinking about the practical lives of human beings partialist value pluralism. Because a person’s life becomes meaningful for that person, at least in part, because of that person’s development of a set of personal commitments and projects, the good life for an individual is going to consist in the successful and, sometimes, unsuccessful, pursuit of these personal projects. When moral obligations are such that they might severely interfere with or destroy an individual’s commitments and projects, it is

19 Bernard Williams has written extensively on the absurd implications of utilitarianism. See, among other essays, Amartya Sen and Bernard Williams, “Introduction: Utilitarianism and Beyond,” Amartya Sen and Bernard Williams, eds., Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1982) 1–21; Bernard Williams, “A Critique of Utilitarianism”; J.J.C. Smart and Bernard Williams, Utilitarianism: For and Against (Cambridge: Cambridge University Press, 1973) 77–150; and Bernard Williams, Morality: An Introduction to Ethics (Cambridge: Cambridge University Press, 1972) 82–98. 20 There are forms of Kantianism, including his own individualist moral perfectionism, which would require forsaking all sorts of one’s projects for better ones, e.g. giving up reading all of the novels of Danielle Steele for reading all of the novels William Faulkner; giving up the pleasures of cheap beer and acquiring an exquisite taste in beer; or, giving up reading and beer drinking in order to make oneself morally perfect. This form of Kantianism would then require a ubiquitous moralism like the ubiquity of the utilitarian imperative. For a discussion of the distinction between impartialist and partialist accounts of morality, see Susan Wolf, “Morality and Partiality,” The Variety of Values: Essays on Morality, Meaning, and Love (Oxford: Oxford University Press, 2015) 31–46.

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reasonable for that person to disregard, or at least discount the moral considerations. 2.1

Projects

So, what is the character of these personal commitments and projects that, in part, constitute a good life for human beings? If values didn’t conflict and if they were all commensurable with one another, it still might not be the case that they could be codified into an algorithmic single decision procedure. However, if there were a genuine objective unity of practical value, it might be reasonable to conclude that there is only one true or authentic version of a good human life, and that all humans should be aspiring to achieve that life. As we have seen, values do conflict and they are not completely commensurable with one another, so there is no reason to believe that there is a single version of the good life appropriate to all human beings. Instead, there is perhaps an infinite number of good lives possible for human beings. When human beings act, they do so in order to preserve the things that they value and to change the things that they do not value in a way that makes them valuable. However, if the partialist value pluralism described thus far is adequate, then it is not obvious how individuals make decisions concerning such conflicting and incommensurable values. So, how does any individual make rational decisions? While some primary values are common to human beings as human beings, the vast majority of things valued and valuable are specific to particular cultures, groups, and individual human beings. Since, at least some of a person’s values will be specific to that individual, there is an ineliminably subjective aspect to practical reason. While an individual’s specific set of personal skills and capacities and her possession of specific virtues will inform her reading of any set of circumstances, her personal commitments or projects, which embody what she values, will also play a central role in her situational appreciation. That is, human beings are project pursuers and their projects constitute what individuals believe to be good lives.21

21 The term ‘projects’ is not perfectly adequate as it suggests that these are all highly rationalistic enterprises. The term ‘projects,’ as I am using it, denotes a person’s commitments, beliefs, and purposes, but does not necessarily mean that these commitments, beliefs, and purposes, are the result of some sort of abstract deliberative process. The lack of the capacity to offer a completely coherent account of one’s projects does not mean that

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A person’s projects and other forms of commitment characteristic of a good human life are not necessarily connected with moral concerns or social relations. The projects are central to a human being’s life because they are meaningful and important to the particular human being, and, secondarily, because they are meaningful in an objective way. Susan Wolf suggests that “meaning arises when subjective attraction meets objective attractiveness.”22 So, any engagement in which a human being might find meaning is eligible to count as a part of an individual’s projects. The engagement’s objective meaningfulness lies in it being explicable by the person engaged, not in some Platonic form of meaningfulness. For example, stamp collecting and doing crosswords would count as meaningful activities in both the subjective and objective senses of the term, while breathing and blinking would not. Both stamp collecting and doing crosswords involve the development of skills intrinsic to the practices of stamp collecting and doing crossword puzzles, as is manifested by the existence of large and various organizations and groups devoted to aspects of both and by the notion of excellence that attaches to each practice. A person can be a connoisseur of stamps and/or of the crossword, and both practices admit a wide range of capacities without denying the possibility of expertise.23 On the other hand, breathing and blinking are not meaningful in the same way, though there are obviously normal and defective one does not have projects, just that they are inchoate or so deeply ingrained that they are not generally the object of reflection. As Bernard Williams observes, “the categorical desires which propel one on do not have to be…very evident to consciousness, let alone grand or large; one good testimony to one’s existence having a point is that the question of its point does not arise.” Bernard Williams, “Persons, Character, and Morality,” Moral Luck: Philosophical Papers, 1973–1980 (Cambridge: Cambridge University Press, 1981) 12. 22 Susan Wolf, “Happiness and Meaning: Two Aspects of the Good Life,” The Variety of Values: Essays on Morality, Meaning, and Love (Oxford: Oxford University Press, 2015) 112. 23 Susan Wolf, in an otherwise enlightening examination of the question of meaningful lives, includes doing crossword puzzles as a meaningless activity, which suggests that she both has a more stringent definition of the objectively meaningful than I am using and that she is likely ignorant of the complexity and ingenuity that goes into both creating and solving such puzzles. She also mentions collecting rubber bands as a meaningless activity, but, if the collector is pursuing the collection as a part of a larger project in which she is interested in an examination of the history of rubber bands and not just obsessively grabbing any rubber band she saw, I believe that collecting rubber bands could also count. See, for example, Jeff Bagato, “Rubber Band Balls: The Ultimate Collectors’ Item,” The Utne Reader (September/October 2000) https://www.utne.com/arts/banderama (accessed

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forms of breathing and blinking. And, of course, controlled breathing is an aspect of other meaningful practices, like yoga or swimming, and, unlike blinking, winking is certainly meaningful, and could theoretically be a part of some aspiring Don Juan’s practice of seduction.24 There are all sorts of nonmoral projects that offer meaning to human lives. There are aesthetic projects like learning to play music and/or appreciate it; there are intellectual projects, like becoming an expert on the history of Byzantium or writing a book on value pluralism; there are athletic projects, like training for a marathon or becoming a great quarterback, and there are religious projects, like the Buddhist purification of the mind or the Methodist Christian aspiration to entire sanctification. These all partake of aspects of perfectionism and self-actualization or realization, and, though some are obviously closely connected with self-interest, none are merely selfish. While projects are not necessarily concerned with moral or social relations, they are by no means confined to nonmoral or self-interested concerns, either. Moral projects, which concern a person’s relations with others and the effects of her actions on others, are just as various as nonmoral projects. A person can reasonably make it central to her conception of a good life that she always take into account the consequences of her actions on those affected; or she could point to some common sense notion of the Golden Rule as central to her concerns for others; or she could focus closely on her special obligations to her close relations, whether natural or chosen. It is usually the case that all three types of moral considerations are taken into account both when people are pursuing their nonmoral projects and when they are deciding what sort of projects are acceptable for them to pursue. So, a person whose projects include stamp collecting, doing crossword puzzles, and improving her

on November 26, 2019). Wolf, “Happiness and Meaning: Two Aspects of the Good Life,” 107–126. 24 In the 1930s and 1940s, it was apparently customary for executives at General Electric to signal other executives that they were to ignore orders by winking at them during presentations. Robert Brooks writes that Robert Paxton, who would become President of G.E., said that “he had first observed the practice [of winking] back in 1935, when his boss had given him an instruction along with a wink…Paxton went on that his objections to the practice of winking had been so strong as to earn him a reputation in the company for being an anti-wink man, and that he, for his part, had never winked.” Robert Brooks, The Wizards of Wall Street: Business Adventures, Once in Golconda, and the Go-Go Years (New York: Open Road Media, 2018).

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musical abilities may also be committed to becoming or remaining an honest person, being a decent wife and mother and daughter, and devoting time to pro-life causes. Her moral commitments also may shape her nonmoral projects. If she is an orthodox Catholic, she may be less likely to believe that she would be a good parent if she allowed her children to attend secular schools. Or if she feels a special moral responsibility to care for her father and cultivate the success of his projects, she may make a commitment to developing her skills as the manager of his business of running the local scrap yard. All of these are perfectly reasonable projects which make for meaningful and good human lives. However, it is neither objectively nor impersonally obvious which of these projects should have priority at any one time to any one person, and it is also not obviously necessary that any person should have an extensively worked out hierarchy of her own projects. Indeed, choice itself is not a necessary condition of a meaningful life, at least, not in the Kantian sense of an autonomous reflective activity which results from a certain sort of abstract ratiocination about one’s options. If this sort of autonomous choice were central to meaningful lives, then one would have to conclude that there have been almost no meaningful lives in the history of humankind, a conclusion which is irrationally arrogant and obviously erroneous. Instead, the possibilities of good lives that present themselves to any human being at any time in her life are both constituted by the ongoing and viable practices in a person’s particular community and by the choices, both reflective and non-reflective, that the particular individual makes in response to those various practices. As noted in the section on practical reason, individuals are initiated into practices, including moral ones, which inform their decisions on what projects to pursue (and are worthy of pursuit) and what constitutes a good life for them as individuals. Both external projects, which involve doing something, like climbing Mt. Fuji, learning classical Latin, making a lot of money, reading Proust, losing twenty pounds, or developing an exquisite taste in cheeses, and internal projects, which involve being or becoming someone, like a good professor, spouse, parent, pianist, or sailor, or being kind, courageous, or prudent are possibilities which present themselves to individuals because they are ongoing projects in the particular society in which a person lives. And a person’s education (moral, vocational, and liberal) will offer opportunities for enlarging one’s possibilities by learning new things. Learning to play and appreciate music opens up options not available to the musically illiterate,

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while learning how to be courageous helps one achieve one’s possibilities. There are limitations involved because of the historical specificity of each person’s particular situation. The aspiring court jester, samurai warrior, switchboard operator, or gandy dancer will likely find her projects frustrated by the obsolescence of these practices. Nonetheless, enterprising human beings have resurrected numerous anachronistic practices, like sword fighting and jousting, so the nineteenth- or early twentieth-century version of the medieval/renaissance faire might bring back railroading and old-fashioned telephoning. In any case, what one does today creates, in part, the conditions in which one acts tomorrow, and what one ought to do today might radically change tomorrow, given different circumstances, and changing personal valuations and projects. As David Wiggins observes, “a person’s reflection on a new situation that confronts him may disrupt such order and fixity [of concerns] as had previously existed and bring a change in his evolving conception of the point…or the several or many points, of living or acting.”25 Indeed, one’s personal experiences play a central role in the direction and development of one’s projects.26 These projects will inevitably take shape over time and will alter in subtle and sometimes not so subtle ways over time. One way of ascertaining the importance of any particular commitment or project to a person is to examine how persistent the person’s commitment has been over an extended period of time.27 Of course, there are people, like Mr. Toad in The Wind in the Willows, whose overall project appears to be the never-ending churning 25 Wiggins, “Deliberation and Practical Reason,” 232. 26 Personal experiences are not only central to the development of people’s projects,

but also central to the development of people’s situational appreciation of relevant factors in any specific act of practical judgment. It is to be expected that a mother whose son has been falsely accused of sexual assault will likely be more skeptical in the future about women who accuse men of sexual assault. In a similar fashion, a police officer who has been falsely accused of an unwarranted use of deadly force will likely be reticent to pull the trigger the next time and might even begin to avoid all areas in which such a scenario might arise. Personal experiences do not guarantee the correctness of subsequent practical judgments, however, and the mother might mistakenly suspect real victims of assault of lying and the policeman might end up dead because of his hesitation to use deadly force again. 27 Loren Lomasky notes that projects are characterized by their persistence throughout a person’s life, centrality to that person’s life, and capacity to structure that person’s life. Loren Lomasky, Persons, Rights, and the Moral Community (Oxford: Oxford University Press, 1987) 25–34.

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of projects or enthusiasms, but most human beings have some fairly stable projects and that stability usually also indicates the strength and centrality of the project to the person’s life. There is, then, a necessary connection between a person’s projects and her having a good and meaningful life. The projects themselves create, in part, the conditions in which individuals act, and also are then intimately related to an individual’s self-conception of what a decent life would be and what kinds of actions are beyond the pale. That is, an individual’s integrity is directly connected to her projects and commitments. Thus, there are certain actions that, one might say, are impossible for certain people to perform because of their particular projects and commitment. A person truly committed to literary excellence does not, cannot read Stephen King novels; a person committed to environmental conservation does not, cannot litter; an authentic Catholic does not abort her babies; an authentic Quaker does not join the armed forces; authentic Kantians do not tell lies; committed artists do not make television commercials, etc. Of course, most people have multiple projects and commitments, so there might be reasons for each of these to excuse their actions in certain situations, e.g., the literary connoisseur might be asked by his daughter to read the book because she enjoys it, or the Quaker might feel compelled to fight in order to protect her children or parents, etc. Nonetheless, the importance of a person’s projects generally mean that there are certain ‘undoable’ things for that person, who would consider engaging in the unthinkable as a violation and perhaps even a destruction of what it is that makes her distinctively human. Because projects give a person’s life meaning and importance, they are also dangerous. Authentic commitments subject human beings to authentic disappointment. There is always the possibility that projects will fail. A woman committed to her husband and to raising a family finds that the husband is unfaithful or is an inveterate gambler, or, in a different type of failure, the husband dies in an automobile accident. A person whose primary commitment is to become a concert violinist or a professional athlete discovers along the way that she is just not talented enough to achieve her goal. An individual who has long been a committed Marxist realizes that it’s a murderous and criminal doctrine. These are different ways in which projects fail: accidents happen, other people destroy them, we discover that we do not have the capacity or ability to achieve what we want to achieve, or we discover that project was not really worthwhile.

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There are, of course, other problems with projects. There obviously can be bad projects. Some are immoral, like those that harm others in various ways by being cruel or unjust. Some violate in some way our normal Golden Rule or common sense morality, like those that use force or fraud for success. Some projects have seriously deleterious consequences for others, like the megalomaniacal projects associated with totalitarian governments. These various immoral projects point toward a slightly different sort of difficulty: the problem of the fanatic. The “fanatic problem” is not necessarily related to the badness of the project, though that certainly exacerbates the problem (e.g., Hitler’s fanaticism about killing Jews; Stalin’s fanaticism about the collectivization of agriculture and the existence of secret enemies within the Soviet Union; Pol Pot’s fanaticism about eliminating Western influence from Cambodia). The problem is also not just that the person allows one particular project to dominate completely her life. Moral saints like Mother Teresa, et al. do this but we certainly don’t condemn them. The problem is that the fanatic believes that everybody else ought to give up his or her own projects and contribute to the success of the fanatic’s.28 As Michael Oakeshott observes, “if it is boring to have to listen to dreams of others being recounted, it is insufferable to be forced to re-enact them.”29 Radical environmentalists are reasonable in their concern about the earth, but unreasonable in their belief that everyone should be forced to share it. So-called anti-racists are reasonable in their criticism of people who judge others solely based upon their race, but unreasonable in their claims that racism is the sole or primary evil in the world and even more unreasonable in their attempts to make everyone else join their quasi-religious crusade. In so far as fanatics tend to force others to abandon their own projects and join the special project of the fanatic, they resemble proselytizing religious leaders who take it as their duty to convert others to their own religious project. With this in mind, it would seem to be a truism that the fanatic in political power is particularly noxious. Nonetheless, as we have seen, it is also true that not every project that a human being might pursue is worthy of pursuit. There are failures of talent or skill and failures due to 28 For a brilliantly constructed analysis of the problem of fanaticism, see Michael Oakeshott, “The Tower of Babel,” On History and Other Essays (Indianapolis, IN: Liberty Fund, 1999) 179–210. 29 Michael Oakeshott, “On Being Conservative,” Rationalism in Politics and Other Essays: New and Expanded Edition (Indianapolis, IN: Liberty Fund, 1991) 427–428.

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unforeseeable events beyond the control of the individual, but there are also immoral projects both because the actions are immoral and because the projects involve the cooptation, suppression, or even annihilation of the projects of others. 2.2

Good Lives

So, project pursuit, successful or not, is essential to a meaningful life, and a meaningful life is essential to a good human life. However, a meaningful life does not constitute the whole of a good human life, and, as discussed in the section above, some projects are unacceptable because they violate the minimum standard of morality. To count as an authentically good life, a life must have meaning and value for the individual living it, while also meeting a minimum standard of moral worthiness. For example, while Jeffrey Dahmer might claim that murdering others and consuming their flesh is central to his conception of a good life, his rather peculiar project violates the minimum substantive content of any morally acceptable life. So, what is the content of the minimum necessary morality? The minimum content of any morally accepted project or social morality refers to what is necessary for human beings to survive and have meaningful lives. This natural normativity or Aristotelian necessity reflects the general and common needs of all human beings.30 Some thinkers (e.g., Catholic neo-Aristotelians) develop conceptions of natural normativity which are quite thick and involve a wide range of prohibitions and imperatives related to a detailed and teleological account of human flourishing, while others (e.g., most value pluralists) offer conceptions of natural normativity which are much thinner, involving a general but limited account of human nature and allowing for a wide variety 30 Philippa Foot writes that Aristotelian necessity is “that which is necessary because and in so far as good hangs on it…These ‘Aristotelian necessities’ depend on what the particular species of plants and animals need, on their natural habitat, and the ways of making out that are in their repertoire. These things together determine what it is for members of a particular species to be as they should be, and to do what they should do…[H]uman defects and excellences are similarly related to what human beings are and what they do.” She uses the term ‘natural normativity’ to describe what human beings and other plants and animals naturally need, in the Aristotelian sense. The term ‘Aristotelian necessity’ was originally used by G.E.M. Anscombe. Philippa Foot, Natural Goodness (Oxford: Clarendon Press, 2001) 15; and G.E.M. Anscombe, “On Promising and Its Justice, and Whether It Needs Be Respected In Foro Interno,” Critica: Revista Hispanoamericana de Filosofía 3 (1969) 68.

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of conventional manners of fulfilling the basic human needs.31 A thin account of human nature involves, at a minimum, the notion that human life is actually good and worthy of preservation, and that there are some minimal conditions necessary to the preservation and propagation of human life.32 Some of these conditions are biological necessities, like the availability of food, water, air, and shelter, while others might be called psycho-physical necessities, like the avoidance of violent killing, torture, or dismemberment, and others might be called purely psychological, like values connected with marriage, raising a family, and living peacefully with others.33 All of these are primary values that human beings generally share, despite the radical variations in how the values are manifested in any particular society. So, moral and/or religious beliefs and institutions sanction different sorts of dietary restrictions, like the prohibition of eating pork in Judaism or the prohibition of eating any meat in vegetarianism. It is also an obvious fact that different people in different places in different times have built an irreducible variety of shelters, from the 31 For a thick account of natural normativity, see, among others, Peter Geach, The

Virtues (Cambridge: Cambridge University Press, 1977); and Alasdair MacIntyre, Dependent Rational Animals: Why Human Beings Need the Virtues (Chicago: Open Court, 1999). For a thin account, see H.L.A. Hart, The Concept of Law, Second Edition (Oxford: Oxford University Press, 1994) 185–200. The account offered in this section owes most to the work of John Kekes and Stuart Hampshire. See Kekes, The Morality of Pluralism, 118–138; John Kekes, The Human Condition (Oxford: Clarendon Press, 2010) 88–137; Hampshire, Morality and Conflict, 82–100, 126–139; Hampshire, Innocence and Experience, 23–78. Kekes distinguishes between primary values and secondary ones, while Hampshire writes of natural needs and conventional desires. The distinction that both make is between the minimum content of morality and the variety of ways that that content manifests itself among human beings. 32 Hart writes that “it is not merely that an overwhelming majority of men do wish to live, even at the cost of hideous misery, but that this is reflected in whole structures of our thought and language, in terms of which we describe the world and each other. We could not subtract the general wish to live and leave intact concepts like danger and safety, harm and benefit, need and function, disease and cure; for these are ways of simultaneously describing and appraising things by reference to the contribution they make to survival which is accepted as an aim.” Hart, The Concept of Law, 192. 33 It is generally considered that things go particularly badly when biological needs are not met. Most would agree that living in Ethiopia during the recent famine, in Europe in the years of the Black Death, in the Ukraine under Stalinist rule, or in China under Mao would be about as bad as a bad human life could be. Compared to those situations, most would prefer the life of a well-fed slave, at least under a kind of benign mastery where there was work to be done but not overdone, and the slave’s needs are supplied by the master or the government itself.

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igloo to the high-rise apartment, and from the medieval castle to the Japanese minka. And, though prohibitions against the taking of human life are general, the substantive content of those prohibitions has varied greatly and continues to do so. Generally, taking life in self-defense or as a member of an authorized military group commanded to kill have both been considered exceptions, and still are. However, abortion was considered an illegitimate form of killing until quite recently in Western countries, while execution as a punishment was considered a legitimate form of killing until quite recently in Western countries.34 In all of these cases, the values are general to all human societies, but the specification is variable. The primary human values, then, cognitively underdetermine the actual beliefs and institutions that instantiate these values.35 Given that this underdetermination is characteristic of human biological necessities, it is far more productive of variety when dealing with purely psychological needs related to family and social life.36 So, the minimum content of good lives will include a recognition of and respect for the primary values concerning the biological, psychophysical, and psychological necessities of human lives. Good lives are lives in which the necessities are met and in which humans recognize that these

34 These two cases are still the subject of vigorous disagreement, but most Western countries have legalized abortion and abolished capital punishment. 35 David Wiggins uses the phrase ‘the doctrine of cognitive underdetermination’ to suggest that “the problem of living a life…is to realize or respect a long and incomplete or open-ended list of concerns which are always at the limit conflicting…[N]ot all the claims of all rational concerns or even of all moral concerns (that the world be thus or so) need be actually reconcilable.” David Wiggins, “Truth, Invention, and the Meaning of Life,” Needs, Values, Truth: Third Edition (Oxford: Clarendon Press, 1998) 125. 36 One might think of the extraordinary variations on what counts as an acceptable form of erotic love. Pedophilia was common in the Greek polis. Polygamy, and, thus, polyamory, was an approved practice in all three of the most powerful monotheistic religions at some point, and is still common in Africa. Herodotus claims that necrophilia was common in ancient Egypt. Bestiality, while usually condemned, is often the subject of amusement, amazement, and titillation (e.g. in Faulkner’s The Hamlet, Lump Snopes sells tickets to see his mentally retarded cousin Ike have sex with a cow). Homosexuality, which was considered a moral abomination only a few years ago, is now celebrated and normalized. In fact, Anthony Burgess, in The Wanting Seed, a prescient novel from 1962 about a dystopian future characterized by overpopulation, creates a society in which heterosexuality is officially condemned by a government whose slogan is “It’s Sapiens to be Homo.” There are, of course, serious questions concerning the compatibility of some of these forms of erotic sexuality with the primary value of propagating the human race, but I won’t address those here.

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necessities ought to be met. Nonetheless, these primary values, like all human values often conflict, and, of course, primary values may conflict with a person’s projects and commitments. Thus, it is often the case that a person sacrifices her own well-being or even her life for the sake of other primary values, and it sometimes happens that the sacrifice is for a value that is not at all primary. For example, Catholic priests and nuns sacrifice the primary psychological value of propagating the human race by committing themselves to celibate lives in the service of God. Soldiers commonly suffer dismemberment and often sacrifice their lives for the sake of their homeland. Parents suffer great personal hardships, like working two and three jobs, to help their children go to university. Artists suffer penury in order to remain true to their art. So, while the primary goods of life, physical security, familial happiness, or personal liberty are generally necessary for good human lives, there is no single decision procedure available to inform human beings as to how to decide which value or values to preserve or promote when conflicts arise between values or between values and personal projects. Thus, though the authentically good human life must be meaningful, in that it has meaning for the individual living it and that that meaning is not solely subjective, it must also meet the minimal substantive standards of morality. However, though conflicts will inevitably occur between primary moral values, between natural needs and conventional desires, and between moral values and nonmoral values, it is not always the case that moral considerations must outweigh nonmoral ones. 2.3

Overridingness

In Chapters 2, 3, and this chapter, I have presented a version of partialist value pluralism that involves not only rejecting the monism of theories like utilitarianism and deontology, but also rejects their claims that moral considerations must be impartial about other human beings.37 I have instead argued that human beings have special obligations to certain specific human beings related to their circumstances and to their voluntary commitments. So moral considerations include a concern for the consequences of one’s actions on others, reflection on some version of 37 Susan Wolf argues that the impartialist insight is that “all are equally deserving of well-being and respect.” Though not a moral monist, she does identify this impartialist insight with morality itself. Wolf, “Morality and Partiality,” 33.

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the golden rule, and a recognition of one’s special obligations. There is no reason to believe that one of these three types of moral consideration will always override or outweigh the other two. Instead, it will often be the case that our partiality to those to whom we owe special obligations will override the other two types of consideration. Further, my partialist version of moral reasoning and judgment exists within the context of a similar claim about value pluralism, which is that there are not only moral values that conflict with each other but also nonmoral values which both conflict with each other and with moral values themselves. In this section, I will suggest that it is the case that a reasonable person will conclude that her partial or special moral commitments and values will sometimes trump her impartial moral commitments and values and that her nonmoral values will sometimes trump her moral values. Thus, impartial moral considerations do not always override partial moral considerations and moral considerations do not always override all other types of considerations. So, when is it acceptable or reasonable to allow one’s special and specific obligations to override impartial moral obligations? Once again, there is no single decision procedure in this circumstance, so much will depend on the character of an individual’s moral commitments and the kind of special obligation under consideration. For example, it is generally conceded that one’s obligations to one’s immediate family often override general obligations to humankind. Parents are reasonably expected to care for their own children before embarking on crusades to improve the world around them. Wives are expected to favor their husbands over all other men as sexual partners, and vice versa. Children are expected to support their elderly parents rather than give their largesse to charitable organizations. These special preferences extend even to concerns about deontological duties. For instance, Rob’s wife asks him if her dress makes her look fat and it objectively does make her look fat. He lies to her and tells her it makes her look like Catherine Zeta-Jones (his favorite actress). In so doing he considers, not that he has a general and nonspecific duty to be kind to everyone, but that he has a specific duty to be kind to his wife and, in this situation, it is much more important to him to be pleasant to his wife than to abide by some nonspecific duty to be honest. He might also weigh the consequences of angering his wife by telling her the truth, but consequentialist considerations might not enter into at all. He might just think, “I ought to be kind to my wife.” And a husband who consistently insists upon telling his wife painful or hurtful truths is rightly understood as a deficient husband, not an upstanding

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moralist.38 So, my claim here is that our special obligations to our family, friends, colleagues, and others related to us in chosen and sometimes nonchosen special ways should be considered moral obligations, and that, sometimes, such obligations can reasonably be understood to outweigh impartial moral considerations.39 Further, I have suggested that an individual might reasonably decide in specific situations that her nonmoral values, commitments, and projects override her moral values. So, when is it acceptable or reasonable to allow one’s commitments to self-interested or perfectionist values to outweigh moral considerations? There are at least two situations in which nonmoral considerations might trump moral considerations. The first, which is not as important as the second, arises when moral considerations just don’t seem to be very relevant to the situation. The second, which sometimes involves questions of special moral obligations, involves situations in which doing the moral thing might possibly significantly harm or even destroy one’s personal projects and commitments. Since these projects and commitments are often moral projects and commitments, this second sort of situation often also partakes of the character of the clash between specific moral commitments and general or impartial moral obligations.

38 Bernard Williams observes that “somewhere…one reaches the necessity that such things as deep attachments to other persons will express themselves in the world in ways which cannot at the same time embody the impartial view, and that they run the risk of offending against it.” He also suggests that a person who reflects upon his special obligations by referring to consequentialist or deontological considerations has had “one thought too many” in the situation. Bernard Williams, “Persons, Character, and Morality,” 18. 39 Examples of such special obligations abound. So, heads of government are generally understood to have special and specific responsibilities to and for their citizens which they do not owe to non-citizens. It is perfectly reasonable for a head of state to consider the interests of the citizens of her state as overriding the interests or even ‘rights’ of aliens, legal or illegal, resident or non-resident. It is commonly accepted that Truman decided to drop the bomb on the Japanese because he wanted to save American lives (I won’t deal with the notion that he also wanted to frighten the Soviets, though it is likely true). It is eminently reasonable for an American president to think about such situations in consequentialist terms and to reject impartial consideration of the consequences, and thus to act as if saving American lives is more important than saving Japanese lives. Of course, he could have withdrawn the demand for unconditional surrender and negotiated a peace treaty with the Japanese, and that might have saved the lives of both Americans and Japanese. It is unlikely that that would have been a satisfactory political solution, but that raises questions of a different sort.

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The first sort of situation in which nonmoral considerations can be said to override moral ones occurs because it is often the case that moral considerations are not of significant consequence (and should not be) in many of our decisions. If we reject simple act utilitarianism and perfectionist versions of deontology, then we will often find it clear that our specific preferences outweigh the kind of granular moral considerations which obsess utilitarians and deontologists. It is common and reasonable to ignore certain sorts of extreme consequentialist concerns and to ignore unimportant sorts of deontological concerns. We break insignificant promises when something important happens; tell white lies to be polite or ease a situation; are indifferent to the ends of others, dealing with them solely on a transactional basis in much of our daily life; and we excuse these sorts of action by attributing them to illness, accident, weather, things beyond our control, decisions intervening, and/or changing circumstances (e.g., I promised to help you move, but that was before my pickup was repossessed; or before I became too ill to get out bed; or before I knew that a blizzard would take place on moving day, or because I’m just stuck inside of Mobile with the Memphis blues again).40 In fact, it is often the case that moral considerations don’t even come into play in our practical decision-making process. Which beer should one order; which movie should one see; which restaurant should one dine at, etc.? It is precisely the kind of personal projects and commitments that constitute a person’s individual conception of a good life that make such decisions easier for him, reasonable to him, and explicable to others. Rick chooses a Karbach Hopadillo because he enjoys hoppy beer and considers himself something of a beer connoisseur; Rhett chooses Rambo over Downton Abbey because he has always loved Stallone movies and considers, perhaps eccentrically, that Stallone is one of the great but underrated auteurs of modern cinema; Bob chooses Thai food because he has fond memories of eating Pad Thai when he lived in Montreal and wants to reflect nostalgically on that time of his life, etc. So, in these

40 Philippa Foot writes that “the rationality of, say, telling the truth, keeping promises, or helping a neighbor is on a par with the rationality of self-preserving action, and of the careful and cognizant pursuit of other innocent ends; each being a part or aspect of practical rationality…[And] it is not always rational to give help where it is needed, to keep a promise, or even, I believe, always to speak the truth.” Philippa Foot, “Does Moral Subjectivism Rest on a Mistake,” Moral Dilemmas and Other Topics in Moral Philosophy (Oxford: Clarendon Press, 2002) 195.

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sorts of situations, the decision to reject the totalizing moralism of utilitarianism and deontology means both that moral obligations, especially insignificant ones, can be overridden by changes in circumstances, and that moral considerations are not ubiquitously overriding and, thus, allow for a realm of the generally amoral which is beyond the reach of moral claims. The second situation deals with stronger claims about nonmoral values outweighing moral ones. In these sorts of situations, a person’s personal projects and commitments are threatened by moral obligations, especially of the impersonal and impartial sort. In the most extreme examples of these situations, one might reasonably conclude that an individual has acted immorally but reasonably. So, for example, an impartial moral theory would conclude that discrimination based upon race or sex is generally immoral because such discrimination involves the mistreatment of groups of people in ways which violate the notion that we should always treat others the way we want to be treated. However, as noted above, individuals have special moral obligations that are often a part of some personal project or commitment that the individual has undertaken during her life. Thus, it is reasonable for the editors and publisher of Ebony magazine to give special preference to black applicants, and for the editors and publisher of Ms. magazine to do the same for women (it should go without saying that what is good for the goose is good for the gander in these situations, however).41 In both cases, there seems to be some overlap between the nonmoral personal projects and commitments of the editors and publishers (e.g., to sell magazines, to tell interesting stories, etc.) and their partial moral commitments (e.g., to celebrate their own group, to moralize, etc.), so that one might include this sort of example under the category of special moral commitments overriding impartial ones rather than under the category of such nonmoral

41 I am referring here solely to private morality and private institutions, not to the public morality of a legally constituted political community. There, impartiality is central to public morality as manifested in the rule of law. Thus, government sanctioned ‘affirmative action’ or ‘diversity hiring and promotion,’ both of which are merely euphemisms for racial discrimination, are immoral, but they are also violations of the general and impartial character of the rule of law. I will discuss these sorts of issues in Chapter 7. As mentioned in footnote 20 above, there is an area in which governments rightly reject impartiality and that is in the relation of government to its own citizens. Governments ought to be partial to the interests of its own citizens, as opposed to the interests of citizens of other states.

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projects overriding moral considerations condemning racial and sexual discrimination. A different sort of example, however, suggests that one’s special moral obligations might lead one to an obviously immoral action. Parents have a special moral obligation to care for their children, and caring often involves discriminating in favor of one’s children over others. For many parents, raising their children in a specific way is central to their own personal moral and nonmoral projects. However, things often go very wrong, and a parent may find herself in a situation in which she must harm others in order to protect or promote the interests of her child or children. A mother who knows that her son has committed a violent crime and has successfully pinned the blame on someone else remains silent so that her son can continue his life. A father whose daughter isn’t quite bright enough to get into her preferred university bribes admissions officials in order to secure her a place at the expense of someone more deserving. In both situations, the parent is acting immorally but reasonably, and, though in both cases the parent deserves punishment, parents who turn their children into the police or parents who do nothing to assist their children to succeed in life are looked upon with a great deal of moral suspicion.42 The final example of reasonable, though not always necessarily justifiable, immorality involves situations in which a person’s explicitly nonmoral projects are threatened by the demands of morality. As Bernard Williams notes, “there can come a point at which it is quite unreasonable for a man to give up, in the name of the impartial good ordering of the world of moral agents, something which is a condition of his having any interest in being around in that world at all.”43 For example, a person whose life is devoted to the creation of beautiful music happens to be born in the Soviet Union.44 From a very young age, he is assisted by

42 Philippa Foot notes that “a man will say that although it is wrong to do a certain thing he ‘has to’ or ‘must’ do it in order to stave off disaster to himself, his family, or his country.” Philippa Foot, “Are Moral Considerations Overriding?,” Virtues and Vices and Other Essays in Moral Philosophy (Oxford: Clarendon Press, 2002) 185. 43 Williams, “Persons, Character, and Morality,” 14. Both Williams and John Kekes offer compelling examples of these situations in Williams, “Moral Luck,” 20–40; and Kekes, The Morality of Pluralism, 161–178. 44 The following is very loosely based on the life of Dmitri Shostakovich, but it is not meant to be historically accurate and is, in fact, deliberately inaccurate.

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the State and Party in his endeavors, but he is constantly reminded of his debt to the State and the Party and it is suggested to him quite strongly that his various musical commitments must be subordinated to the ideological commitments of Communism. The composer develops musical interests that are avant-garde and writes an experimental opera expressing this interest. His work is publicly condemned and he issues an equally public apology for his ideological deviationism. He expects to be sent to the Gulag, but, instead, remains free while his friends and relatives are sent away instead. He does not accuse any of them, but he does nothing to help them and his public apology implicates his colleagues. He continues to compose, though not in a way that might displease the regime. He continues to praise in a very public manner Stalin and Communism and writes patriotic music to celebrate significant dates in Soviet life. He even becomes an active Party member, though he never gets his hands completely dirty by reporting on dissidents. After his death, his children reveal that he knew that he was betraying friends and he knew that his public celebration of the regime was very influential in maintaining the continued support for both the Soviet Union and international Communism in the West. His children defend him by pointing to the immensely complex, beautiful, and, in spite of the Stalinist threat, innovative corpus of work he produced. This person certainly was immoral and his action violated the minimum content of morality, but, given his personal commitments both to his art and to the necessary part that his being alive had to do with creating his art, his actions are eminently reasonable, and, in this case, can be considered justifiable. Given the previous examples, it might seem that I am advocating an immoralist version of value pluralism. However, I am only claiming that moral considerations are not always overriding, and that there are other reasons for admiring human beings and their work than moral reasons.45 Nonetheless, there are good consequentialist reasons for the weight given to moral considerations. The world is likely a better place when people consider the effects that their actions have on others and avoid harming them. There are also good deontological reasons for the weight given moral considerations. It is usually reasonable to treat other humans with 45 A list of people who have done admirable things despite being not particularly morally praiseworthy would fill libraries around the world, but here are a few examples: General Patton, Mike Tyson, Pete Rose, Gustave Flaubert, James Levine, Don Juan/Giovanni, Churchill, Caravaggio, Ezra Pound, Martin Luther King, Jr., et al.

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decency and respect. Finally, there are good value pluralist reasons for the weight given to moral considerations. It is generally the case that moral values ought to outweigh self-interest, and a stable morality often creates the conditions under which nonmoral valuation is possible. Still, morality is only one element of a good human life. Good lives depend on both moral rectitude and meaningfulness, and any decent individual will be both concerned with her moral obligations and with her personal projects and commitments, and, in some cases, it will be reasonable for those projects and commitments to override moral considerations.

3

Conclusion

The theory presented here does not offer answers to all moral problems. The critique that it can’t answer all moral questions, however, begs the question of whether moral and other practical questions can, in fact, be answered in such a quasi-mathematical way. Since I hope to have shown that these problems cannot be answered in such a way, the criticism is irrelevant. It’s like criticizing a cow for not being able to fly, a screwdriver for not being able to fix a flat, or a theory of comedy for not offering a method for writing and telling funny jokes. Despite not offering answers to all practical questions, however, the theory of value pluralism that I offer does have important implications in practical life, especially in political life. In the next section of the book, I will examine those implications, suggesting that one of the most important is that, for those who accept value pluralism, the primary political value will be the kind of negative liberty that allows individuals to fulfill their commitments and pursue their projects, and the primary political virtue will be tolerance of the commitments and projects of others.

CHAPTER 5

Varieties of Pluralist Political Theories: Modus Vivendi Pluralism and Egalitarian Pluralism

Abstract This chapter begins an exploration of the implications of value pluralism for political theory and practice. It suggests that two of the most important are that, for those who accept value pluralism, the primary political value will be the kind of negative liberty that allows individuals to fulfill their commitments and pursue their projects, and the primary political virtue will be tolerance of the commitments and projects of others. However, before elaborating these claims, it examines the way that other value pluralists have treated political questions, focusing on how they conceive of the place of liberty in a pluralist state. Keywords Negative liberty · Positive liberty · Egalitarian pluralism · Modus vivendi pluralism · John Gray · Thomas Nagel · Value pluralism · Radical incommensurability

If one accepts that the claims of value pluralism are more or less convincing, what are the implications for political theory and political practice that follow? Before offering my answer to this question, I will examine the answers given by other value pluralists. I will not attempt to offer an exhaustive account of every possible pluralist political theory, but will instead focus in this chapter on two different ways in which value pluralists have explored the implications of pluralism for political © The Author(s) 2021 K. B. McIntyre, Nomocratic Pluralism, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-53390-8_5

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life, examining specifically the importance, or lack thereof, of negative liberty in the political theories of value pluralists. I focus on negative liberty because, in Chapters 6 and 7, I will argue that self-conscious value pluralists will reasonably conclude that the protection and promotion of negative liberty ought to be considered as the rebuttable first priority of an authentically pluralist political community. That is, the public morality of a political/legal community composed of self-conscious value pluralists would consider the protection of negative liberty as the first responsibility and the differentia of a pluralist government. As a complement to negative liberty as the unique responsibility of a self-consciously pluralist government, the first virtue and the differentia of the public morality of a pluralist community would be toleration of others, especially toleration of what others choose to do with their liberty. I will refer to this variety of pluralist political theory as liberal pluralism and will discuss it in detail in Chapter 6, and will offer a specific version of liberal pluralism that I refer to as nomocratic pluralism in Chapter 7.1 Before defending these claims in Chapters 6 and 7, however, I will examine two different approaches to political and legal questions taken by other value pluralists. There is no reason to believe that there could not be other approaches, but the two I examine in this chapter and the liberal version that I elaborate in Chapter 6 have been most prominent.2 First, 1 In Chapter 6, I discuss two varieties of liberal pluralism: welfare liberal pluralism and classical liberal pluralism. Though both consider negative liberty a primary political value, welfare pluralists often confuse negative and positive liberty in their discussions of the central importance of autonomy to good human lives, while classical pluralists hold to a firm distinction between the two. 2 Although there are some commonalities, the political theories of various value pluralists should not be confused with either the interest group pluralism connected closely with American political scientists like A.F. Bentley, David Truman, and Robert Dahl in the midto late-twentieth century or the pluralist political ideas promoted by British thinkers like J.N. Figgis, F.W. Maitland, G.D.H. Cole, and H.J. Laski in the early- to mid-twentieth century. The American political scientists purported to offer empirical explanations of the actual workings of the American political system, arguing that policy decisions in the USA are reached through a bargaining process amongst various interest groups in which government operates as both umpire and final arbitrator. The British pluralists, on the other hand, were interested in what Hegel called civil society, which consists of the various organizations and associations of individuals which, though sometimes sanctioned or recognized by the government of the modern state, are also independent in various ways of the state. The English pluralists claimed that these groups are necessary to the successful stability of modern states and provide a counteracting power to that of the modern state. For accounts of these versions of political pluralism, see David Nichols,

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there are modus vivendi pluralists who reject the notion that the acceptance of pluralism suggests that negative liberty would be the primary priority of a pluralist community, and, indeed are skeptical of the notion that the acceptance of pluralism necessarily ought to be connected to any specific political regime or set of institutions. Second, there are egalitarian pluralists who reject the notion that negative liberty would be the most reasonable priority of a pluralist community, instead insisting that political, legal, and material equality is central to the adequate use of liberty and the promotion of pluralism, and, thus, ought to be the primary priority of a pluralist community.3 I will examine these claims through the work of prominent exponents of each of them, with John Gray as the modus vivendi pluralist and Thomas Nagel as the egalitarian pluralist. I will conclude that both modus vivendi pluralism and egalitarian pluralism suffer from specific weaknesses connected with their respective interpretations of the character and importance of pluralism itself which render modus vivendi pluralism’s attention to the commitments of self-conscious pluralists insufficient, and render egalitarian pluralism’s commitment to pluralism itself inadequate.

1

Modus Vivendi Pluralism

The term “modus vivendi” was originally a term of abuse that John Rawls used to characterize an unacceptable conception of the agreement that supports a just liberal regime. For Rawls, a merely strategic or instrumental agreement to “get along” was both an unjust and unstable way to found a society of cooperation for mutual benefit.4 However,

Three Varieties of Pluralism (London: Macmillan Press, 1974); Paul Q. Hirst, ed., The Pluralist Theory of the State: Selected Writings of G.D.H. Cole, J.N. Figgis, and H.J. Laski (London: Routledge, 1989); and David Runciman, Pluralism and the Personality of the State (Cambridge: Cambridge University Press, 1997). 3 As mentioned in footnote 1, there are liberal pluralists who would agree that negative liberty is a significant priority, but admit that other liberal values (e.g. equality, opportunity, etc.) are just as, if not more, important in certain situations than negative liberty, and there are liberal pluralists who argue that negative liberty ought to be considered the primary value for value pluralists. I discuss liberal pluralism in Chapter 6. 4 John Rawls, Political Liberalism: Expanded Edition (New York: Columbia University Press, 2005) 144–154. Rawls’ acceptance of value pluralism is questionable, and he severely limits this acknowledgement by restricting acceptable pluralisms to those he calls reasonable pluralism. Nonetheless, critics have suggested that Rawls is wrong about the

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modus vivendi pluralists reject Rawls’ claim that a political society is most adequately understood as a society of fair cooperation. Instead, they insist that the most that could garner widespread support among people with radically different moral commitments would be to consider political society as a regime of peaceful coexistence. Because of this conclusion, modus vivendi pluralists claim that pluralism has little to nothing to contribute to political theory. As John Gray writes, “as a matter of logic, value pluralism cannot entail any political project. All that value pluralism implies is that strongly universalist moralities—religious or political—are illusions.”5 Instead, whatever beliefs, values, commitments, or institutions lead to (relatively) peaceful coexistence constitute the modus vivendi of any particular political community. Liberal values and institutions (e.g., negative liberty manifested in freedom of speech, freedom of association, freedom of conscience, private property rights, etc.) are not a necessary part of every version of a good human life, and, thus, are not a necessary part of any political modus vivendi.6

apparent instability of a modus vivendi understanding of political agreement. For example, Claudia Mills argues that such an instrumentalist or strategic commitment to a liberal regime might be just as effective as the overlapping consensus that Rawls recommends, and, of course, instrumental/strategic commitments can develop over time into stronger more durable commitments (e.g. the transactional relationship that a person has with his barber or bartender or haberdasher often turns into a personal commitment to said barber, bartender, haberdasher). See Claudia Mills, “‘Not a Mere Modus Vivendi’: The Bases for Allegiance to the Just State,” The Idea of Political Liberalism, Victoria Davion and Clark Wolf, eds. (Lanham, MD: Rowman & Littlefield, 2000) 190–203; and Scott Hershovitz, “A Mere Modus Vivendi?,” The Idea of Political Liberalism, Victoria Davion and Clark Wolf, eds. (Lanham, MD: Rowman & Littlefield, 2000) 221–230. 5 John Gray, Two Faces of Liberalism (New York: The New Press, 2000) 135. For other writers who have argued that value pluralism has few implication for political theory, see George Crowder, “Pluralism and Liberalism,” Political Studies 42 (1994) 293–305; Glen Newey, “Value-Pluralism in Contemporary Liberalism,” Dialogue 37 (1998) 493– 522; and John Kekes, The Morality of Pluralism (Princeton: Princeton University Press, 1993) 199–217. Both Crowder and Kekes have subsequently altered their positions, with Crowder now arguing that an acceptance of value pluralism leads to an acceptance of welfare-state liberalism, and Kekes suggesting that it would lead to an Oakeshottian-style conservatism. See George Crowder, Liberalism and Value Pluralism (London: Continuum Books, 2002) 217–257; and John Kekes, A Case for Conservatism (Ithaca, NY: Cornell University Press, 1998) 190–219. 6 The most prominent proponent of modus vivendi pluralism is John Gray, and I will be treating his work as the exemplary version of this sort of political pluralism. See John Gray, “Where Pluralists and Liberals Part Company,” Pluralism: The Philosophy and Politics

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Modus vivendi pluralists have made it their primary point of departure to address the radical alteration of political culture that has arisen as nonor anti-liberal individuals and groups have immigrated to Western liberal states. As Patrick Neal observes, modus vivendi pluralism is a response to the “shift from liberals arguing with each other about rights versus utility to liberals exploring alternative ways of rationally defending the faith in the face of challenges from ‘outside’.”7 They are much less concerned with conflicts within liberal value systems than with the kind of conflicts that exist between cultures, especially Western liberal cultures and nonliberal non-Western cultures, because, with mass immigration from the latter to the former, these conflicts have become internal to liberal states.8 Like other pluralists examined in this chapter, modus vivendi pluralists view negative liberty as merely one value among many others. However, the modus vivendi pluralists recognize that, for many individuals and groups, negative liberty, especially understood in terms of individual choice, is not central to the pursuit of their version of the good life. This is especially the case for orthodox religious adherents, who despite the secularization of the West, appear to be growing in numbers throughout the rest of the world. Indeed, according to modus vivendi pluralists, the

of Diversity, Maria Baghramian and Attracta Ingram, eds. (London: Routledge, 2000) 85– 102; and Gray, Two Faces of Liberalism. There are other writers who use the language of modus vivendi and/or peaceful coexistence, but use it to defend negative liberty as a primary political value. See Chandran Kukathis, The Liberal Archipelago: A Theory of Diversity and Freedom (Oxford: Oxford University Press, 2003) and David McCabe, Modus Vivendi Liberalism: Theory and Practice (Cambridge: Cambridge University Press, 2010). Others defend a version of modus vivendi pluralism while calling it something else. Patrick Neal calls it vulgar liberalism, and John Gray, in an earlier iteration, calls it agonistic liberalism. Since these latter writers are all claiming that value pluralism does lead to some form of liberalism, I will discuss them in Chapter 6, in which I defend the connection between self-conscious value pluralism and the political primacy of negative liberty. See Patrick Neal, “Vulgar Liberalism,” Liberalism and Its Discontents (New York: New York University Press, 1997) 185–205; John Gray, “Berlin’s Agonistic Liberalism,” Post-liberalism: Studies in Political Thought (London: Routledge, 1993) 64–69; and John Gray, “Agonistic Liberalism,” Enlightenment’s Wake: Politics and Culture at the Close of the Modern Age (London: Routledge, 1995) 64–86. 7 Neal, “Vulgar Liberalism,” 185. 8 There hasn’t been a lot written by value pluralists about international relations and

conflict between state entities as representing distinctive conceptions of the good, though the English historical school of international relations is well known for considerations of this kind. For an overview, see Barry Buzan, An Introduction to the English School of International Relations (Cambridge: Polity Press, 2014).

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liberal emphasis on negative liberty and freedom of choice neglects or even crowds out other possible good things. David McCabe suggests that “in championing goods like self-expression, individuality, and choice, liberal regimes do less well in fostering others—cultural continuity within normative frameworks, aesthetic coherence across the community, fraternity with fellow citizens, moral integrity, and so on.”9 The recognition of the truth of a radical form value pluralism has led the person most closely identified with modus vivendi pluralism, John Gray, to reject the notion that pluralism leads to liberalism at all. Indeed, as suggested above, this more radical pluralism has led Gray to claim that the political community in a pluralist world is best understood in terms of peaceful coexistence or “just getting along.” The political regime of the modern state, for Gray, can be described as a modus vivendi which allows individuals and groups to pursue their own versions of the good life without the overall direction of a central power.10 Gray’s account of modus vivendi pluralism is most accurately considered as, on the one hand, a practical response to the influx of non-liberal and anti-liberal individuals and groups into the Western world and, on the other, a theoretical response to the appearance and academic influence of philosophically monistic theories of liberalism.11 He claims that “as a consequence of mass migration, new technologies of communication and continued cultural experimentation, nearly all societies today contain several ways of life, with many people belonging to more than one.”12 He couples this relatively noncontroversial historical claim with a much more contentious historical and theoretical argument. Gray suggests that the ideological and monistic version of liberalism found in the work of thinkers like Rawls and Dworkin does not adequately reflect the empirical fact of pluralism as found in modern states or the theoretical truth of value

9 McCabe, Modus Vivendi Liberalism, 103. 10 Patrick Neal writes that modus vivendi pluralism involves “a ‘Hobbesian enterprise of

pragmatically looking for ways to insure civil peace and order among those who disagree.” Neal, “Vulgar Liberalism,” 191. 11 John Gray changes theoretical commitments as often as Larry King changes wives, so I will focus primarily on his work on modus vivendi pluralism, which can be found in Gray, “Where Pluralists and Liberals Part Company”; and Gray, Two Faces of Liberalism. For a brief account of Gray’s intellectual transformations, see Robert Colls, “Ethics Man: John Gray’s New Moral World,” The Political Quarterly 69 (1998) 59–71. 12 Gray, Two Faces of Liberalism, 1.

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pluralism as an account of human life. Further, Gray asserts that contemporary monistic liberalism is the last gasp of the Enlightenment project, which consisted of the attempt to construct or discover a single, universal, impersonal, and impartial morality and consequent political regime that would then be applied and administered throughout the world. He writes that: the failures of the Enlightenment project that are my point of departure are intellectual as well as world-historical, though these intellectual failures are inevitably repressed in conventional liberal thought: I mean the inability of liberal theorists to deliver on the foundationalist promises of the Enlightenment project, by giving the principles of liberal society a universal claim on reason.13

For Gray, the failure of both the Enlightenment project and of contemporary monistic liberalism result from the refusal of both to take seriously the nature of value pluralism. Since contemporary liberalism as manifested in the work of Rawls, Dworkin, Gauthier, Hayek, et al. fails to offer an adequate account of value pluralism, it neglects the authentic character of human life, offering instead a highly artificial and highly rationalized conception of morality and politics. According to Gray, taking proper account of the nature of value pluralism will lead, not to a liberal political theory, but to conceiving of political life as a modus vivendi between individuals and groups who hold a variety of conflicting ideas about what counts as a good human life. This modus vivendi will not be a onetime settlement or resolution of conflict, but a constant negotiation of the terms of peaceful coexistence between conflicting groups within any particular society. Gray’s account of value pluralism focuses primarily on the kinds of conflicts between values and the incommensurability of values that were discussed in Chapter 3. He writes that “the goods of human life are many and cannot be derived from or reduced to any one value,” that there is a “non-harmony among values,” and that “there is no one kind of life that

13 John Gray, “Agonistic Liberalism,” 69. I will not address Gray’s characterization of the Enlightenment project here, but, for a treatment of various critics of the Enlightenment project, see Gene Callahan and Kenneth B. McIntyre, eds., Critics of Enlightenment Rationalism (New York: Palgrave Macmillan, 2020).

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is the best for all humankind or for any single person.”14 These are characteristic claims made by most value pluralists, including me. However, there are important differences between Gray’s account and my account of conflict and incommensurability. He writes that, since: conflicts between communities whose ways of life are incompatible are a major threat to human well-being in the late modern world…,[t]he variety of pluralism that should shape the agenda of political philosophy today is not the pluralism of personal plans and ideals that preoccupies recent liberal theory. It is the strong pluralism of incommensurable goods and bads whose conflicts implicate whole ways of life.15

Gray’s “strong pluralism” is characterized by an extreme incommensurability of values, and Gray argues that this means that there is no rational way to make judgments among such values or among commitments, plans, projects, or among ways of life. He writes that incommensurable goods “cannot be ranked,” and that incommensurability “means that no…comparative judgments are possible.”16 For Gray, the difficulties associated with making judgments between different cultural systems is the single most important political problem of the contemporary Western world. However, as I argued in Chapter 3, the incommensurability of values does not necessarily lead to a radical subjectivism of the type that Gray often suggests it does. Incommensurability only suggests that all values cannot be reduced to a single metric without emptying the variety of values of their actual meaningfulness in human lives. For example, one can buy sex, but one cannot buy love or friendship, so one might conclude that sex and friendship are not completely commensurable. That does not make decisions concerning whether one should sleep with one’s friends or with one’s friends’ spouses beyond the scope of reasonable choice. Nor does it even mean that the value of sex itself can be made completely manifest in terms of monetary exchange.17 Further, as we

14 Gray, “Where Pluralists and Liberals Part Company,” 87. 15 Gray, “Where Pluralists and Liberals Part Company,” 85. 16 Gray, Two Faces of Liberalism; and Gray, “Where Pluralists and Liberals Part

Company,” 94. 17 The Beatles, a popular singing group from the 1960s, recognized the difficulties arising in this area, noting that love cannot be reduced to a purely monetary valuation, when stating that ‘I don’t care too much for money, [because] money can’t me love.’

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have seen, the problems associated with incommensurability are more often than not overcome by the set of circumstances in which decisions are made, including considerations of both impersonal/impartial and personal duties, the consequences to others of one’s actions, and one’s personal commitments and projects. And comparisons can be made according to some specific quality in which the comparison is made. Gray suggests that the works of Aeschylus, Shakespeare, and Beckett are noncomparable (a term that he uses synonymously with incommensurable). However, Richard Halpern has just published a work which compares the three playwrights (among others) in terms of the connection between tragedy and political economy.18 So, Gray has exaggerated the irrationality which any account of incommensurability must admit. Further, he does not offer an account of the character of practical reason, and, as I argued in Chapter 4, without such an account, value pluralism tends to slide into subjectivism and relativism. Gray’s emphasis on radical incommensurability and conflict is the direct result of his focus on the problem of plural monisms instead of on the implications of the acceptance of value pluralism.19 From this account of “strong” value pluralism, Gray derives his account of political life, which he calls modus vivendi pluralism. Gray’s version of modus vivendi is rather sketchy, but, given his claim that radical incommensurability makes rational judgments about value difficult if not impossible, the sketchiness is not necessarily its primary weakness. First, Gray claims that, since values are plural, conflict with each other, and are incommensurable, there is no single argument about the structure of the

At the same time, however, they realized that, in certain circumstances (e.g. extreme poverty), money might be considered more valuable than love. So while admitting that ‘your lovin’ gives me a thrill,’ they also note that ‘your lovin’ don’t pay my bills,’ so the solution is to ‘give me money, that’s what I want.’ 18 Richard Halpern, Eclipse of Action: Tragedy and Political Economy (Chicago: The University of Chicago Press, 2017). 19 For a similar critique of Gray’s conception of incommensurability, see Douglas B. Rasmussen and Douglas J. Den Uyl, Norms of Liberty: A Perfectionist Basis for Nonperfectionist Politics (University Park, PA: The Pennsylvania State University Press, 2005) 173–183. Rasmussen and Den Uyl focus on Gray’s generalized rejection of perfectionist morality, which ignores the possibility that value pluralism can encompass a notion of individual moral perfectionism, which can also resolve the problems of general incommensurability of values by particularizing such problems within the beliefs, commitments, and projects of an individual.

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political community that could possibly be acceptable to all members of the community, and, thus, the fact of value pluralism itself destroys the credibility of monistic versions of liberalism. According to Gray, liberalism offers a version of the good life, but, since it is only one version, it cannot be understood to have universal validity. Second, since there are many forms of human flourishing, there will be many forms of government which are acceptable insofar as they promote a variety of good lives and maintain order, security, and enforce the minimum content of morality. Gray writes that “the test that value-pluralists apply is how regimes promote and protect valuable ways of life and ensure a modus vivendi among them…[and] the terms of such modus vivendi will be constrained by a universal minimum morality that specifies a range of generically human goods and bads.”20 Third, negative liberty, for Gray, is merely one value among many, and, in fact, the concept of liberty is subject to the same sort of conflicts which characterize value conflict and incommensurability. He writes that “just as there are conflicts among ultimate values that are incommensurable—between liberty and equality, equality and general welfare, say—so there are conflicts no less radical within liberty itself—conflicts among distinct liberties having incommensurable value.”21 Thus, he rejects not only the notion that negative liberty would be a priority for any self-conscious value pluralist, but also rejects the idea that negative liberty (i.e., freedom from external interference or coercion by other human beings) would be more valued by the pluralist than positive liberty (i.e., capacity for self-mastery or self-realization).22

20 Gray, “Where Pluralists and Liberals Part Company,” 86, 87. Gray offers no systematic account of the minimum content of morality, arguing that “there can be no definitive list of the conditions that endanger a worthwhile human life. Even so, to be tortured, or forced to witness the torture of loved ones or compatriots; to be separated from one’s friends, family or country; to be subjected to humiliation or persecution, or threatened with genocide; to be locked in poverty or avoidable ill-health—these are great evils for all who suffer them.” He also notes that “The good life for humans demands a clean and healthy environment, a stable and cohesive society, and a distribution of benefits and burdens that is accepted as fair. It requires many other goods as well. There can be no complete or definitive list.” Gray, Two Faces of Liberalism, 66; Gray, “Where Pluralists and Liberals Part Company,” 98. 21 John Gray, “Berlin’s Agonistic Liberalism,” Post-liberalism: Studies in Political Thought (London: Routledge, 1993). 22 I examine the concepts of positive and negative liberty in more detail in Chapter 6, which argues that self-conscious value pluralists would place a primary, but rebuttable,

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Gray sometimes suggests that toleration is a primary priority of modus vivendi pluralism, and I will argue in this chapter that toleration is the primary virtue of pluralist political regimes.23 He is also correct in rejecting the Rawlsian characterization of political community as a fair system of cooperation.24 As Gray rightly observes, the empirically pluralistic nature of modern states means that they cannot be accurately considered systems of cooperation. Instead, modern states ought to be understood as means by which individuals and groups of individuals with very different commitments, plans, and conceptions of a good human life coexist in a relatively peaceful and orderly way.25 It is also the case that self-conscious value pluralists would view the state in a similar way, since there is no reason for pluralists to expect the state to assist them in the pursuit of their particular projects by forcing others to cooperate with them. However, they can reasonably expect the state to secure the conditions under which they engage in the pursuit of their projects (e.g., order, security, and negative liberty). Gray is right in observing that negative liberty is not the only political value, and that order and security are also important. So, it makes perfect sense for a person, whether a pluralist or not, to prefer the order and security of Singapore and, until recently, of Hong Kong to the negative liberty of inner-city Detroit, the south side of Chicago, or the ninth ward of New Orleans. However, since order and security are goods in any political regime and would be considered goods by monists as well as pluralists, this fact does not tell us anything about the importance of value pluralism or its implications for political theory.

priority on the preservation of negative liberty as the primary differentia of a pluralist political regime. 23 He writes that “toleration is a precondition of any stable modus vivendi among incorrigibly imperfect human beings.” See John Gray, “Toleration: A Post-liberal Perspective,” Enlightenment’s Wake: Politics and Culture at the Close of the Modern Age (London: Routledge, 1995) 18. 24 In A Theory of Justice, Rawls writes that “society is a cooperative venture for mutual advantage,” while, in Justice as Fairness, he claims that “political society…is a fair system of cooperation.” John Rawls, A Theory of Justice: Revised Edition (Cambridge, MA: Belknap Press of Harvard University, 1999) 4; and John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Belknap Press of Harvard University, 2001) 4. 25 Neal suggests that “Hobbesians take the measure of civil polity by the yardstick of the summum malum, and on that instrument the mark labelled ‘civil peace’ is not preceded by the adjective ‘mere’.” Neal, “Vulgar Liberalism,” 200.

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Indeed, the most obvious weakness of Gray’s work, and that of other pluralists who reject the connection between pluralism and a preference for negative liberty as a political value, is that Gray does not take the commitments of self-conscious value pluralists seriously enough. Instead, his primary concern seems to be making the West safe for plural monisms. Value pluralism as an account of the character of practical life does not involve the mere assertion that there is a plurality of beliefs about what makes for a good life for human beings. Instead, it involves a claim about the real nature and plurality of possible good human lives, and, thus, the more interesting question is, what are the implications for accepting it; not how do we deal with those who do not accept it? Nonetheless, Gray’s claims that political life in plural communities involves, at its best, getting along others, and that “the test of legitimacy for any regime is its success in mediating conflict of values” raise questions about what counts as getting along and what counts as successful mediation.26 As noted above, Gray often suggests that any modus vivendi can be judged on the basis of whether it preserves, supports, and/or encourages a variety of versions of good human lives. It is “a political project, not a moral ideal…[I]t is a commitment to common institutions in which the claims of rival values can be reconciled.”27 At the same time he claims that modus vivendi does not “aim to convert the world to value-pluralism…[Indeed,] illusion may be a condition of some forms of life that are worth living.”28 It is with this confession that Gray’s lack of seriousness about the implications of value pluralism become clear, and we are presented with, to borrow a phrase from Bernard Williams, what might be called Government House

26 Gray, Two Faces of Liberalism, 133. 27 Gray, Two Faces of Liberalism, 25. 28 Gray, Two Faces of Liberalism, 25, 136. As an example of the perversity of Gray’s

argument, he suggests that the suffering and anguish of Kafka and Van Gough might have been a necessary condition of their creative genius, so that curing their problems might have prevented them from producing their masterpieces. However, it’s a very different proposition to suggest that, had Kafka or Van Gough not experienced their own personal torments, they would not have produced the profound beauty that they did, and saying that we shouldn’t want to prevent human beings from experiencing personal torments because, on occasion, we get good art out of it. In a similar way, it is one thing to accept Shostakovich’s compromises with Soviet totalitarianism as reasonable under the circumstances, but it’s quite another to justify Soviet totalitarianism because Shostakovich produced his music under its cloud. Gray, Two Faces of Liberalism, 59.

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pluralism.29 Modus vivendi here is a kind of value pluralism where the ignorant monists are protected in their monism to preserve their happiness, contentedness, the values of their monisms, etc. Indeed, the purpose of Gray’s modus vivendi regime could be understood as the fostering of a menagerie of monisms so that pluralists are able to observe the kinds of goods that acceptance of pluralism makes impossible or, at least, difficult (e.g., monotheistic doctrinal religions, political ideologies, cultural institutions like slavery and suttee and cannibalism).30 Generally, we would prefer that our scientists, engineers, mechanics, and carpenters have “true” opinions about their various practices. It is less important that human beings have correct meta-ethical opinions, but it is still odd that Gray is indifferent to the persistence of error in thinking about moral and practical judgments.31 Indeed, Gray is more concerned with criticizing liberal monists like Kant, Bentham, and Rawls 29 Williams uses the term ‘Government House Utilitarianism’ to describe the anxiety of rule utilitarians about what the possible deleterious effects on common sense morality might be if the common people actually understood the true character of utilitarian arguments, especially the notion that act utility is the real or authentic justification for obeying moral rules. He writes that “Utilitarianism emerges as the morality of an elite, and the distinction between theory and practice determines a class of theorists in whose hands the truth of the Utilitarian justification of non-Utilitarian dispositions will be responsibly deployed…This version may be called ‘Government House Utilitarianism.” Bernard Williams, “The Point of View of the Universe: Sidgwick and the Ambitions of Ethics,” Making Sense of Humanity and Other Philosophical Papers, 1982–1993 (Cambridge: Cambridge University Press, 1995) 166. 30 Gray mentions that slavery would be contrary to the minimum content of morality, but gives no support for this argument. A benign slavery which insured that the slaves were well-fed, well-housed, well-clothed, had adequate leisure time, somewhat meaningful work, etc. would seemingly satisfy Gray’s standards. In fact, he even mentions the Communist regime in Cuba under Castro as a legitimate form of government, suggesting that government enslavement of the people is acceptable as long they have a socialized medical service. Gray, Two Faces of Liberalism, 109–110. 31 Daniel Weinstock offers the following characterization of Gray’s indifference toward persistent monists (I have substituted the term ‘pluralist’ and ‘monist’ for Weinstock’s original terms ‘liberal’ and ‘traditional’ to clarify the relevance of his summary to my argument): “[The pluralist] knows something that [the monist] does not. [The pluralist] is right in his beliefs about value, whereas [the monist] is wrong. His epistemic superiority has to do, moreover, not with some marginal fact or relatively trivial aspect of human existence. Rather, it has to do with moral and prudential values that give meaning to life and allow for cooperation and solidarity within communities. Given his objective value pluralism, Gray can deny this superiority only by trivializing pluralism in a way that runs against the whole thrust of his argument.” Daniel M. Weinstock, “The Graying of Berlin,” Critical Review 11 (1997) 492.

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than with correcting illiberal monists, like Muslims, Marxists, and Fundamentalist Christians.32 It is true that one does not have to have a proper understanding of moral philosophy either to be moral or to live a decent life, just as one does not have to have a proper philosophy of comedy to be funny. However, it is usually considered to be the case that it is better to know the truth than to operate under an illusion. As Bernard Williams writes, “the consciousness of the plurality of competing values is itself a good, as constituting knowledge of an absolute and fundamental truth.”33 It should also be obvious that accepting the adequacy of value pluralism as an account of human practical life will have an actual effect on one’s practical valuations, the nature of one’s commitments, plans, and projects, and what one takes to be a good human life. Gray claims that “strong pluralism is a subversive truth. It cannot coexist with the articles of faith of any universalist creed,” which is an odd claim for him to make given that his primary concern seems to be extending liberal tolerance to a variety of illiberal monisms, each claiming to be true and, thus, rejecting value pluralism.34 Of course, self-conscious value pluralists will not necessarily be morally upstanding human beings, and the acceptance of value pluralism will not bring about the New Jerusalem and it is unlikely that the lion will be lying down with the lamb. There is no reason to believe that people who accept the validity of value pluralism will not continue to cheat on their spouses or on their taxes, steal from their employers, neighbors, or big box retailers, mistreat or ignore their children and/or parents, refuse to stand up for what is right, flee from danger, abuse drugs or alcohol, or do almost anything that has traditionally been considered immoral. However, if they take their acceptance of value pluralism seriously, they will be far less likely to be fanatical followers of religion or political ideology, and they will quite obviously want to reserve for themselves the freedom to change their minds about

32 In this he is very different than Stuart Hampshire, another thinker who could be

classified as a modus vivendi pluralist. Indeed, Hampshire titled the second chapter of Justice Is Conflict “Against Monotheism.” Stuart Hampshire, Justice Is Conflict (Princeton: Princeton University Press, 2000) 51–75. 33 Bernard Williams, “Introduction”; and Isaiah Berlin, Concepts and Categories (Princeton: Princeton University Press, 1978) xix. 34 Gray, “Where Pluralists and Liberals Part Company,” 101.

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their beliefs, commitments, plans, and projects.35 For a person who has changed his mind so many times about so many things, Gray seemingly ignores that there might be others who might at some point change their minds as well, and, thus, place a high priority on negative liberty. Gray’s strong or extreme version of pluralism suffers from other serious weaknesses directly related to his characterization of the problem that he is attempting to address. His project concerns, on the one hand, addressing the increasing empirical pluralism which characterizes modern Western states, while also criticizing the theoretical claims of monistic or ideological liberals because of their rejection of value pluralism. However, Gray’s practical purposes and his theoretical ones do not necessarily cohere very well. The historical fact that Western states now contain significant and diverse population groups who not only reject liberalism as an account of the good life for humans but offer distinctively non- or anti-liberal accounts of the good life for human beings is of significant practical importance. However, this development has nothing to do with the theoretical validity of value pluralism as an adequate account of practical life. Indeed, instead of addressing the implications for political life of value pluralism for self-conscious value pluralists, Gray focuses almost solely on the problem of the proliferation of plural monisms. Because of this direction, Gray’s account of value pluralism concerns itself primarily with conflicts between groups and cultures, and ignores conflicts within groups and cultures and within the individuals composing them. And, when he does glance in that direction, his examples point in the direction of the priority of negative liberty, especially regarding choices about an individual’s own commitments to groups or cultures.36

35 For Chandran Kukathas, who is as concerned with extending liberal toleration to

non- or anti-liberal individuals and groups as Gray, the right of exit and the freedom of association connected with it are the central liberties that value pluralists would want their governments to protect. Kukathas, The Liberal Archipelago, 74–118. 36 Gray writes “say I am a second-generation Asian woman who must decide between an arranged marriage and a relationship based on personal choice. In that case an appeal to common practices will not suffice. I must decide which practice I accept.” Gray’s example offers obvious evidence as to why a self-conscious pluralist would strongly desire a government that placed a rebuttable primary priority on the preservation of negative liberty for its citizens. Otherwise, and in a modus vivendi pluralist community, this paradigmatic woman might not be given a choice between the two options at all. Gray, Two Faces of Liberalism, 56.

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Modus vivendi pluralism is best understood, not as a form of liberalism, but as an appeal to liberals, both monists and pluralists, to extend the range of toleration in the liberal state to non- and anti-liberals who are willing to accept a minimal public moral standard which doesn’t prioritize negative liberty or choice itself. The ambivalent and, sometimes hostile, disposition of Gray as the most prominent defender of modus vivendi toward negative liberty makes modus vivendi pluralism much more susceptible to appropriation from ideologies that are both monistic and anti-liberal, and, in that way, undermines any real commitment to the truth claims of value pluralism. It also involves ignoring the radical character of accepting value pluralism, i.e., that there are all sorts of orthodoxies and ideologies that would be obviously unappealing to a value pluralist because of their monistic character. Gray wants to preserve the diversity of good lives, especially those dependent on monistic morality, but in doing so, he neglects the importance of negative liberty to his fellow value pluralists.

2

Egalitarian Liberalism

If the modus vivendi pluralists, especially Gray, tend to exaggerate the effects of incommensurability on political life, egalitarian pluralists minimize in an arbitrary way the importance of pluralism for politics. Many forms of egalitarianism are, prima facie, incompatible with an acceptance of the adequacy of value pluralism as an account of the practical life of human beings. Equality involves having equal quantities of some specific thing or bundle of things. Since the value pluralist position is that there are many values that are incompatible and, more importantly, incommensurable, there are all sorts of things that cannot be “equalized” because they cannot be reduced to a single metric. As discussed in Chapter 3, this incommensurability does not necessarily preclude reasonable choices from being made, especially at the level of the individual person, whose specific obligations and personal commitments, plans, and projects will provide her with a rough and ready set of considerations not completely generalizable to the rest of humankind. Still, one might ask the egalitarian, how does one equalize talents or social circumstances? What does one use to weigh one person’s musical talent versus another’s athletic talent, or versus another’s intelligence? What metric does one use to compare the “life chances” of a child born to wealthy parents who ignore or abuse her to the “life chances” of a child born to poor

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parents who care for her deeply? The unsatisfactory answer, of course, is almost always that everything is reduced to some monetary calculation or bundle of material goods. However, the value pluralist will protest that this sort of reduction is irrational, as it necessarily neglects the characteristic singularity of incommensurable values, and, thus, does not actually equalize the situations of various human beings. Nonetheless, some value pluralists have suggested that equality ought to be the primary political value of a community of pluralists. In this section, I examine the arguments of Thomas Nagel, the most prominent moral philosopher claiming that some sort of value pluralism is compatible with egalitarian political arrangements.37 Most egalitarians are uncomfortable with the eccentricity, particularity, and individuality that characterizes actual human beings, and the inchoate authoritarian paternalist in them is always itching to rectify the situation by homogenizing the population. Artists have portrayed this elitist conformism in works like “Harrison Bergeron,” in which ballerinas are forced to dance with weights tied around them and the intelligent have noise-makers implanted in their ears so that they cannot concentrate, and Facial Justice, in which the attractive of society are “encouraged” to get facial reconstruction surgery so that they will not excite the envy of their

37 Other pluralists who make similar claims about the centrality of equality, especially material equality, to just political arrangements include Elizabeth Anderson, Alan Thomas, Michael Walzer, and Will Kymlicka. It is worthwhile noting that the commitment to pluralism of egalitarian pluralists like Anderson and Thomas dissipates significantly when they discuss their egalitarian political ideas. Indeed, in their various works on political theory, they almost never mention value pluralism at all. See Elizabeth Anderson, The Imperative of Integration (Princeton: Princeton University Press, 2010); Elizabeth Anderson, Private Government: How Employers Rule Our Lives (and Why We Don’t Talk About It) (Princeton: Princeton University Press, 2017); and Alan Thomas, Republic of Equals: Predistribution and Property-Owning Democracy (Oxford: Oxford University Press, 2017). On the other hand, Walzer and Kymlicka are more concerned with discussing the empirical pluralism of diverse moral cultures or systems rather than the adequacy of value pluralism as an account of human practical life. Thus, their political theories emphasize group egalitarianism as much as individual egalitarianism. See Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983); Michael Walzer, Politics and Passion: Towards a More Egalitarian Liberalism (New Haven, CT: Yale University Press, 2004); Will Kymlicka, Liberalism, Community, and Culture (Oxford: Clarendon Press, 1989); and Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Oxford University Press, 1995).

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fellow citizens.38 For the most part, Nagel avoids this tendency, though it does appear when he deals with libertarians like Robert Nozick.39 This tendency is what Anthony Flew calls the Procrustean ideal, and it is lurking in the background, when not proclaiming itself publicly, in all forms of egalitarian politics.40 Nonetheless, I will not be focusing my attention on the failures of egalitarian political theory in general, though I do believe that the failures are numerous and fatal to it. Instead, my argument is that a self-conscious pluralist would not consider equality of the sort proposed by egalitarian political theorists to be a significant public value, and would not want the government engaged in enterprises that take resources from some citizens and give them to others as a part of an egalitarian enterprise. In dealing with Nagel, my concern is to examine his specific account of value pluralism, question the coherence of it, and then suggest that self-conscious value pluralists would not support egalitarian policies nor does pluralism contribute to egalitarianism. I also suggest that Nagel himself expresses this sentiment on several occasions. So, like other egalitarian pluralists, in order to support his own egalitarianism, Nagel has to suppress in an arbitrary way the pluralist elements of his moral theory. Nagel’s early essays both explain and exhibit the kind of pluralism advanced in this volume. In “The Fragmentation of Value,” which informs my discussion of human values in Chapter 3, Nagel argues that there are six different kinds of values or reasons for actions: first, there are “specific obligations to other people or institutions,” including to one’s family, profession, business associates, friends, and fellow citizens; second, there are general deontological duties to other human beings; third, there are consequential or utility values concerned with the effects that our actions have on other human beings; fourth, there are perfectionist values or ends concerned with “the intrinsic value of certain achievements 38 Kurt Vonnegut, “Harrison Bergeron,” Welcome to the Monkey House: A Collection of Short Works (New York: Dial Press, 1998); and L.P. Hartley, Facial Justice (London: Hamish Hamilton, 1960). 39 See Thomas Nagel, “Nozick: Libertarians Without Foundations,” Other Minds: Critical Essays, 1969–1994 (Oxford: Oxford University Press, 1995) 137–149; and Liam Murphy and Thomas Nagel, The Myth of Ownership: Taxes and Justice (Oxford: Oxford University Press, 2002). 40 Anthony Flew, “The Procrustean Ideal: Libertarians v. Egalitarians,” Against Equality: Readings on Economic and Social Policy, William Letwin, ed. (London: The Macmillan Press, 1983) 148–163; and Anthony Flew, The Politics of Procrustes: Contradictions of Enforced Equality (Buffalo, NY: Prometheus Books, 1981).

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apart from the their value to individuals who experience or use them;” fifth, there are values specific to the commitments, plans, and projects of specific individuals; and, sixth, there are the values of self-interest.41 According to Nagel, attempts to order them in some sort of universally accepted hierarchy distort the uniqueness of each sort of value. Further, these values inevitably conflict and cannot be reduced to a single metric which would allow human beings to compare them in a completely impartial way. Indeed, he suggests that “the great division between personal and impersonal, or between agent-centered and outcome-centered, or subjective and objective reasons, is so basic that it renders implausible any reductive unification of ethics—let alone of practical reasoning in general.”42 In terms of political values, he writes in an essay on political equality that “equality is only one value…[and] we can understand a radically egalitarian system just as we can understand a radical system of rights, but I assume that neither is correct.”43 Here, Nagel appears to be supporting a liberal pluralism of the sort associated with Isaiah Berlin or Bernard Williams in which there are a variety of publicly admitted values, none of which holds a primary position.44 However, in his later more comprehensive works on moral and political philosophy, The View from Nowhere and Equality and Partiality, Nagel offers an egalitarian pluralism in which his political egalitarianism is supported by a much narrower kind of pluralism. Nagel avoids the incommensurability problem that would normally plague any thoroughgoing egalitarianism by introducing a radical separation between the impartial morality of deontology and consequentialism and the personal morality of special obligations and personal commitments. On occasion, Nagel suggests that morality only consists of the former, which would negate the pluralism of the theory, instead, restating the traditional radical separation of morality and self-interest. His equivocation on this issue contributes to the confusion as to whether he is actually a pluralist. For example, in The View from Nowhere, he suggests that there are three different sorts of reasons for actions. There are reasons of autonomy based on 41 Thomas Nagel, “The Fragmentation of Value,” Mortal Questions (Cambridge: Cambridge University Press, 1979) 129. 42 Nagel, “The Fragmentation of Value,” 133. 43 Thomas Nagel, “Equality,” Mortal Questions (Cambridge: Cambridge University

Press, 1979) 127. 44 I discuss liberal pluralism in Chapter 6.

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“the desires, projects, commitments, and personal ties of the individual agent;” there are reasons of obligation, which Nagel defines as “special obligations we have toward those to whom we are closely related: parents, children, spouses, siblings, fellow members of a community or even a nation;” and there are deontological reasons, which consist of the “claims of other persons not to be maltreated in certain ways.”45 It is not at all clear, however, whether he considers these various types of reasons to be equally moral, unequally moral, or some moral and some nonmoral. On the one hand, Nagel claims that “moral requirements have their source in the claims of other persons,” which suggests that reasons of autonomy might not be moral reasons at all but that reasons of special obligation, since they necessarily deal with others, are moral reasons.46 On the other, Nagel’s quasi-Hegelian account of the development of moral sensibility suggests that personal commitments and purposes have some sort of moral status. Nonetheless, Nagel does make it clear that the moral should trump the nonmoral in a way that is not compatible with the arguments set forth in Chapter 4, though he expresses this more as a personal desire than a logical conclusion. He writes that “there is much more to us, and therefore much more to what is good and bad for us, than what is directly involved in morality,…[but] I am inclined strongly to hope, and less strongly to believe, that the correct morality will always have the preponderance of reasons its side.”47 It is this brutally honest lack of confidence in the theoretical and motivational coherence of a purely impartial morality that suggests that Nagel’s pluralism might be described as unhappy and Nagel himself described as a pluralist malgré lui.48 Nagel’s defense of political egalitarianism is rooted in his phenomenological explanation of the development of human moral sensibility. According to Nagel, rational moral development, and subsequently

45 Thomas Nagel, The View from Nowhere (Oxford: Oxford University Press, 1986)

165. 46 Nagel, The View, 197. 47 Nagel, The View, 197, 199. 48 In an early essay on Nagel, Alan Thomas observes that “the troubling part of Nagel’s

view is how he represents us as theoretically committed to both…‘ethical pluralism’, and to liberal egalitarianism.” In a later book on Nagel, Thomas calls Nagel’s moral philosophy a “hybrid theory” which attempts to combine pluralism with impartial deontology. Alan Thomas, “Nagel’s ‘Paradox’ of Equality and Partiality,” Res Publica 9 (2003) 257; and Alan Thomas, Thomas Nagel (New York: Routledge, 2008) 183–189.

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rational political development, takes place through a series of logically distinguishable stages. In the first stage, human beings’ interest in the world is determined by their personal situations, beliefs, and commitments. Because of the necessarily social character of human existence, human beings quickly understand that other humans have their own situations, beliefs, and commitments. He avers that “each of us begins with a set of concerns, desires, and interests of his own, and each of us can recognize that the same is true of others. We can then remove ourselves in thought from our particular position in the world and think simply of all those people, without singling out as I the one we happen to be.”49 Thus, individuals move from what Nagel calls the personal standpoint to an impersonal standpoint in which these individuals recognize the distinction between reasons and values that are particular to themselves (what Nagel calls “agent-relative”) and reasons and values that are shared by all human beings (what Nagel calls “agent-neutral”). Individuals move from personal to impersonal point of view by detaching themselves from their own commitments and beliefs, and as they recognize the distinction between agent-relative and agent-neutral reasons and values, they also conclude that everyone is of equal value and that the most important values are agent-neutral. Nagel writes that “the basic insight that appears from the impersonal standpoint is that everyone’s life matters, and no one is more important than anyone else.”50 However, it is not at all obvious that his egalitarian conclusion necessarily follows from a recognition that others have their own beliefs, values, and commitments, and that some of these are common to all (or most) human beings. Instead, one might just as reasonably say “I recognize that others have commitments in a similar way to the way that I do, but mine are more important because they are mine; I expect other people to feel the same way; because of this I am happy to engage in reciprocal non-interference, as I expect no assistance from them and they shouldn’t expect any from me.” Nagel’s egalitarian conclusions, then, are questionable from early in his argument. In the next stage, individuals move from the initially impersonal point of view to the impartial point of view. Here, according to Nagel, the individual recognizes that “the right form of impersonal regard for everyone is an impartiality among individuals that is egalitarian…in the sense that

49 Thomas Nagel, Equality and Partiality (Oxford: Oxford University Press, 1991) 10. 50 Nagel, Equality, 11.

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the[y] give preferential weight to improvements in the lives of those who are worse off as against adding to the advantages of those better off.”51 At this stage, there appears a nascent commitment to some sort of egalitarian political arrangement, unless, of course, Nagel is read as claiming that the impartial standpoint necessarily trumps the partial one. Nagel emphasizes the political reading by insisting that the move to the next stage involves a recognition that impartiality involves a universal unanimity concerning the legitimate conditions in which individuals live together. This political stage involves the creation of institutions which manifest the rational human commitment to the impersonal and impartial character of morality. However, the impartial stage also involves the recognition that the special obligations of individuals and their personal commitments and projects retain some moral worth. This radical bifurcation of the personal and impersonal standpoints is what provides Nagel his justification for elevating material equality to its position as the primary political value of any legitimate regime, but this elevation does seem to contradict his notion that the impartial includes personal obligations and commitments. He does continue to recognize the importance of personal moral and nonmoral commitments. As he writes, “the ideal…is a set of institutions within which persons can live a collective life that meets the impartial requirements of the impersonal standpoint while at the same time having to conduct themselves only in ways that it is reasonable to require of individuals with strong personal motives.”52 As shall become apparent, however, it is the collective and egalitarian concerns that inform public institutions, which then regulate what sort of space can be allowed for personal purposes and projects. So, Nagel’s political theory is characterized by a radical tension between a person’s partiality toward her special obligations, personal commitments, plans, and projects and the impartial character of treating everyone equally, which, according to Nagel, involves always favoring the worst off in any political policy or decision. From the personal or partial standpoint, what matters most is what matters to me, while from the impersonal standpoint, what matters most appears to be, not what matters to others, but what matters to the worst off out of the others under consideration. Nagel’s solution to the tension, which he admits is

51 Nagel, Equality, 12. 52 Nagel, Equality, 18.

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not really a solution at all, is to introduce what he calls a moral division of labor between the public institutions of the modern state and the private inclinations or preferences of individuals.53 The political institutions are considered in a quasi-contractual way, as what would be agreeable to all individuals when considering their arrangement in an impersonal way. According to Nagel, what would be reasonable would be a commitment to a substantial public egalitarianism in terms of material resources, which would preserve some private area in which the standpoint of the personal would operate. The state deals with the impersonal, impartial, egalitarian side of morality and leaves the individual to pursue her special obligations and personal projects on her own time, so to speak. As Nagel writes, “the aim is to externalize through social institutions the most impartial requirements of the impersonal standpoints.”54 However, this division of labor places the material resources of the citizens and the power of creating rules and enforcement of the division of labor in the hands of the state, which is committed to the impartial egalitarian aspect of morality. It is not hard to imagine what will be sacrificed when conflict occurs between the moral individualism connected to the personal standpoint and the collectivist egalitarianism connected with the impersonal standpoint. Indeed, Nagel, as he so often does, allows that his resolution is not satisfactory. Instead, he admits that “to design institutions which serve an ideal of egalitarian impartiality without demanding a too extensive impartiality of the individuals who occupy instrumental roles in those institutions is the great unsolved problem of egalitarian political theory, social democracy, and the anti-authoritarian left in general.”55 He bolsters his commitment to strong egalitarianism by three further claims, none of which is defended in great detail. First, he claims that the state, given that it is the collective agent of the citizens, is responsible for not only what it does but what it doesn’t do. He writes that “the pursuit of equality requires the abandonment of the idea that there is a morally fundamental distinction…between what the state does and 53 Nagel writes that “I see no general solution to this problem. That is, there are, I

suspect, no general principles governing both agent-relative, personal reasons and agentneutral, impartial reasons, and their combination, which are acceptable from all points of view in light of their consequences under all realistically possible conditions.” Nagel, Equality, 49. 54 Nagel, Equality, 53. 55 Nagel, Equality, 61.

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what it merely allows.”56 It’s not clear how far Nagel wants to extend this responsibility (e.g., is the state responsible for differential susceptibility to diseases like Sickle Cell Anemia, Tay-Sachs, Cystic Fibrosis, or hemochromatosis; for differences in IQ scores between different groups; for differences in life expectancy between sexes; for the continuing mediocrity of the Cleveland Browns, etc.?), but it clearly involves continuous active interference in all aspects of human life.57 Further, his commitment to material equality is partnered with an argument that individuals do not deserve their inherited social positions nor their talents or abilities. He suggests that “the fact that we are not responsible for our talents renders morally questionable all but the most immediate inequalities that derive from them.”58 This sort of claim has become a commonplace of contemporary Anglophone egalitarian political theory, but it is rarely defended in a coherent way.59 Nagel, unlike others, does admit that making the

56 Nagel, Equality, 99. 57 Nagel emphasizes that “Every arrangement has to be justified by comparison with

every other real possibility.” Emphasis in the original. Nagel, Equality, 100. Regarding egalitarian politics, Elie Kedourie observes that “equality requires…constant and detailed official intervention in the most private affairs, in order for it to be instituted and maintained—intervention which must, in turn, involve perpetual disturbance of existing relationships and expectations, and thus perpetual exacerbation of social tensions.” Elie Kedourie, “Conservatives and Neo-conservatives”, The Crossman Confessions and Other Essays in Politics, History and Religion (London: Mansell Publishing Ltd., 1984) 74. Regarding responsibility for non-action, Jan Narveson notes that “refraining is not an action, but a nonaction. If we are to say that a nonaction is nevertheless an action, then such ‘actions’ are being ‘performed’ all the time and everywhere by everyone who is not currently doing the particular thing that would, in the present case, relieve your starvation. When one considers all the things I conceivably could be doing right now, and proposes to call each of them an ‘action’, then I am one exceedingly busy person just now, as are we all.” Narveson, The Libertarian Idea (Philadelphia, PA: Temple University Press, 1988) 38. 58 Nagel, Equality, 121. 59 Louis Pojman notes that this sort of ‘luck egalitarianism’ involves the following

necessary conclusions: “since I do not deserve my two good eyes and two good kidneys, the social engineer may take one of each from me to give to persons needing an eye or a kidney—even if their organs became damaged through their own voluntary actions. Since no one deserves anything, we do not deserve pay for our labors or praise for a job well done or first prize in a race we win. The notion of moral responsibility vanishes in a system of levelling. So does the notion of self -respect, deemed the basic primary good, for if we are simply the products of the Natural Lottery, how can the self deserve anything at all, including respect?” Louis Pojman, “Equality and Desert,” Philosophy 72 (1997) 551. Eric Nelson offers an extended critique of the notion that the positive talents and

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distinction between purely natural talent and the effort that goes into developing it is impossible to define clearly, but, nonetheless, he would prefer “to sever the connection between talent and income” in order for the state to be able to take that income and give it to others.60 Finally, Nagel offers a brief account of individual rights, which seem to be the area in which the personal or partial preferences of individuals have some sway. He excludes economic rights from this account because “no one could reasonably reject a system just because it permitted…taxation [to finance redistribution], since that is simply not an intolerable violation of the domain of personal conduct and interpersonal relations.”61 This is not an argument but a mere assertion. Perhaps, Nagel needs to read attentively and with seriousness libertarian philosophers who make precisely that argument. To say that “no reasonable person could maintain x” is about as unreasonable an argument as any being made by philosophers today. Nagel’s attempts to combine value pluralism with a commitment to political egalitarianism are unsuccessful for a variety of reasons. As seen above, John Gray tends to exaggerate the virulence of value conflicts, but Nagel, at least in his political theory, neglects or suppresses the significance of such conflicts. Before addressing the problems with his moral theory, I will deal briefly with the difficulties to be found in his egalitarian political theory. First, there is no reason why his observation that some people have better life chances than others should lead him to egalitarianism. As Harry Frankfurt, among others, has noted, if everyone has resources sufficient to the pursuit of a meaningful life, then whether someone or some group has more is irrelevant. Nagel asks “how could it not be an evil that some people’s life prospects at birth are radically inferior to others?,” and the obvious answer is that having sufficient life prospects ought to be good enough for anyone, unless that person suffers from the vice of envy.62 As Harry Frankfurt observes:

capacities of human beings are morally arbitrary in chapters four and five of Eric Nelson, The Theology of Liberalism: Political Philosophy and the Justice of God (Cambridge, MA: Belknap Press, 2019). 60 Nagel, Equality, 113. 61 Nagel, Equality, 144. 62 Nagel, Equality, 28.

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The fundamental error of egalitarianism lies in supposing that it is morally important whether one has less than another regardless of how much either of them has. This error is due in part to the false assumption that someone who is economically worse off has more important unsatisfied needs than someone who is better off. In fact, the morally significant needs of both individuals may be fully satisfied or equally unsatisfied.63

Indeed, instead of wistfully hoping that people will eventually become more committed to egalitarianism, Nagel might just as reasonably wish that people will become less envious.64 Another weakness of Nagel’s egalitarianism is that, like most egalitarians, he moves from universal moral claims about the equal worth of human beings to particularist claims about equality in specific and nonuniversal political communities. Nagel derives his egalitarianism from claims that are supposedly made about human beings in general. However, his political solution is tied to particular states, which are partial to their own citizens. Thus, even if particular political communities instituted egalitarian institutions in their own states, these institutions would be partial to their own citizens, and, thus, unjustly inegalitarian toward the rest of humanity, at least according to Nagel’s impartial standpoint. In fact, however, Nagel hedges on his universal commitments when commenting on the particularism of his political theory. He writes that “the world as a

63 Harry Frankfurt, “Equality as a Moral Ideal,” The Importance of What We Care About (Cambridge: Cambridge University Press, 1988) 149. In a similar fashion, John Kekes notes that “what is deplorable…is not inequality but that some people do not have enough.” John Kekes, Against Liberalism (Ithaca, NY: Cornell University Press, 1997) 95. See also Harry G. Frankfurt, “Equality and Respect,” Necessity, Volition, and Love (Cambridge: Cambridge University Press, 1999) 146–154; J.R. Lucas, “Against Equality Again,” Against Equality: Readings on Economic and Social Policy, William Letwin, ed. (London: The Macmillan Press, 1983) 73–105; John Charvet, “The Idea of Equality as a Substantive Principle of Society,” Against Equality: Readings on Economic and Social Policy, William Letwin, ed. (London: The Macmillan Press, 1983) 106–123; and Louis Pojman, “Theories of Equality: A Critical Analysis,” Behavior and Philosophy 23 (1995) 1–27. 64 Pojman relates a story from the time of Soviet rule in Russia that epitomizes the

politics of envy associated with egalitarianism. He writes, “An angel appears to a Russian woman and offers her a wish. She may receive anything she desires. There is only one catch. Whatever she wishes for herself will be given two-fold to her neighbors. Without hesitating, she cries out, ‘Pluck out one of my eyes.’ Such is the morality of envy.” Pojman, “Theories of Equality,” 26 n. 7.

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whole contains cultural and national communities representing such radically diverse values that no conception of a legitimate political order can be constructed under which they could all live—a system of law backed by force that was in its basic structure acceptable to them all.”65 This admission undermines the notion that all reasonable people would accept substantive egalitarianism as the primary principle of their political institutions, and, in fact, suggests that Nagel’s version of egalitarianism is meant to apply only to Western liberal polities. It is a common insight that universalist moral theories are difficult to translate into theories of political life that accept the existence of multiple independent states.66 Nagel’s egalitarian political theory is no exception. Indeed, as John Kekes writes, “particular equality [within a state] requires political programs that are incompatible with universal equality.”67 Nonetheless, my concern is less with the problems that Nagel’s egalitarianism shares with other forms of egalitarianism than with the problems inherent in his particular version of value pluralism and the relevance of these problems to his elevation of material equality as the central concern of public institutions. As discussed above, Nagel’s pluralism involves the separation of personal values and reasons for action from impersonal values and reasons for action. The move from personal to impersonal involves what he calls a shift from a partial moral standpoint to an impartial moral standpoint. Nagel also allows for what he calls perfectionist values, though he never offers an extended explanation of the relation between perfectionist values and either the personal/impersonal distinction or the partial/impartial distinction. Perfectionist values also have only a minor place in his political theory. Nagel’s argument about the connections between these various sorts of value and these various standpoints 65 Nagel, Equality, 170. 66 The American Declaration of Independence is a classic example of this sort of

problem. The move from universalist claims, e.g. each individual has natural rights to life, liberty, and property, to particularist claims, e.g. we the people (which people?) have a right to govern ourselves according to natural rights theory, leaves all of those outside ‘our’ borders with their rights possibly unprotected. So, do non-Americans (in this example) actually have natural rights, too? If so, should Americans be enforcing the protection of natural rights throughout the world? The egalitarian problem is only different in subject matter. If redistribution of material resources is necessary to equalize people in some way, why does it stop at the border? Do non-citizens not merit equal consideration? 67 Kekes, Against Liberalism, 112.

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is often ambiguous, which is why his commitment to value pluralism is not as clear as it could be. On occasion, he asserts that impersonal values and the impartial moral standpoint outweigh or ought to outweigh all other values. This is where his commitment to egalitarianism enters. However, Nagel admits that he has not offered much in the way of an argument supporting such a view. In fact, he admits that a truly impartial morality would include the kind of personal obligations to others and personal commitments and projects that he calls the partial standpoint. He writes, “The idea is that certain demands on the ordinary individual— to overcome his own needs, commitments, and attachments in favor of impersonal claims that he can also recognize—are unreasonable in a way that can be impersonally acknowledged. But this does not necessarily mean that it would be irrational for someone who can do so to accept such demands, or rather impose them on himself.”68 In Chapters 2 and 3, I have argued that some personal considerations are moral and that these often are more important than impersonal moral considerations; and that, sometimes, nonmoral personal considerations ought to override both types of moral considerations. If this type of pluralism is accepted, then equality both as a moral and political value would be just one among many, and Nagel’s personal preference for impersonal values and the overridingness of the impersonal and impartial standpoint can be understood as an arbitrary suppression of pluralism.69 Nagel’s defense of moral and political egalitarianism only makes sense because of his suppression of authentic value pluralism. If Nagel’s impartial standpoint is completely identified with impersonal values and reasons for action, it is not a higher form of morality from a pluralist standpoint, but merely one sort of moral consideration among others. If one reads Nagel as suggesting that the impartial includes both the personal and the impersonal, then the impartial standpoint will be impartial between those two, with sometimes the personal and sometimes the impersonal offering 68 Nagel, View, 203. Kekes makes a similar point about Nagel’s honesty in observing that “the amazing feature of Nagel’s position is that, instead of arguments designed to close the gap [between the personal/partial and impersonal/impartial points of view], he offers again and again frank admissions that he does not have them.” John Kekes, The Illusions of Egalitarianism (Ithaca, NY: Cornell University Press, 2003) 162. 69 Nagel also neglects tensions within the category of impersonal values between different types of duties to others, and, to a lesser extent, between consideration of duties and consideration of consequentialism. Such conflicts are treated in Chapters 2, 3, and 4 of this volume.

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the stronger reasons for acting.70 Whichever is the case, neither version supports Nagel’s substantive egalitarianism, for self-conscious pluralists would reasonably prefer institutions that protect their capacity as individuals to pursue their own version of a good life (as long as that version does not violate the minimum conditions of morality) to institutions which would be constantly changing the laws and redistributing resources in order to equalize the life chances of individuals. The recognition that others have their own commitments, plans, and projects would lead pluralists to conclude that their responsibilities to others include a reciprocal noninterference in and tolerance of the beliefs, commitments, etc., of others. The role of the government, here, is to be impartial between different personal and impersonal commitments, plans, and projects of citizens, as long as these are not gross violations of the minimum content of morality. The insight of the modus vivendi pluralists is that society ought not to be understood as a fair system of social cooperation, or in Nagel’s words as “a collective enterprise,” but instead as an association in which human beings are related, not in terms of their usefulness to each other in such an enterprise, but in terms of the recognition that individuals have their own lives to lead.71 The state is understood not as an enterprise association, but as a means of peaceful coexistence. Of course, there is a place for equality in such a political community. For value pluralists, equality is best understood as a political consideration rather than a moral one, as it is quite obvious that every human being isn’t morally equal, in either the sense of objective moral worth or in the sense of the subjective value of each person to other specific persons. Instead, human beings in political communities are related to one another in a particular way which is defined more by law than by morality. Individuals are citizens understood as equals before the law. A citizen is a persona, not a total identity, and such personae are related in terms of the recognition of common rules of association.72 Individuals, qua individuals, are not necessarily considered as equals in almost any other way by self-conscious value pluralists. As discussed in Chapters 3 and 4, 70 Alan Thomas notes that “one interpretation of Nagel’s final considered opinions is that they are unstable, fatally divided between his pluralist instinct to accommodate the full range of ethical considerations and his competing instinct to attach central importance to our power to objectify our pre-reflective commitments.” Thomas, Thomas Nagel, 205. 71 Nagel, Equality, 137. 72 I will be discussing pluralism, liberty, and the rule of law in Chapter 7.

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there are a variety of different moral and nonmoral relationships between human beings. There are relationships connected with what Nagel calls impartial moral considerations of both the common sense golden rule sort and of the consequentialist sort where the equality of human beings is central. But, there are also partialist or personal moral considerations which deal with those to whom we have special obligations because of natural or voluntary connections, and there are nonmoral projects and commitments, and, in both of these situations, certain people are more valuable and/or important to us than others. Therefore, there is no need either to consider all people to be equal or to treat people “equally” in such circumstances.73 Indeed, the kind of substantive material egalitarianism that one finds in Nagel’s political theory is irrelevant to politics among self-conscious value pluralists. The fact that there are differences in wealth and/or income, vast or otherwise, between citizens is not the concern of government (though the existence of extreme poverty and want would be). To conclude, for egalitarian pluralists, pluralism is understood as a problem in human life that cannot be solved, but can be suppressed. Indeed, egalitarian pluralists might also be called disappointed or unhappy pluralists, and, as mentioned above, Nagel is certainly only a pluralist malgré lui. For Nagel, the messiness of value pluralism doesn’t meet his preferred theoretical standards, and so life, or at least public life, must be arranged to minimize the effects of pluralism. The government, therefore, must somehow equalize power, wealth, and human capacities in ways that severely limit not only what counts as a legitimate human value, plan, project, commitment, or way of life, but also severely limits the capacities of individuals and groups to lead their own lives according to their own commitments. The problem here is that it is not at all clear why self-conscious pluralists would place a high value on the kind of radical egalitarianism proposed by Nagel and other egalitarians. Certainly, equality before the law would be important, and I will address the nature and meaning of the term “equality under the law”

73 As Kekes argues, “the vast majority of actions that morality requires people to

perform occur in contexts where partiality is essential. Love, friendship, family life, citizenship, professional responsibilities are what they are because participants in them treat one another quite differently from the way they treat non-participants. Such partiality, resulting in caring much more about the well-being of some people than about the well-being of others, is a requirement of morality.” Kekes, Illusions of Egalitarianism, 165.

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when I discuss liberty under the law in Chapter 7. This sort of equality would not require a completely neutral government, as it would prohibit certain sorts of actions which some people might believe contribute to their own vision of a good human life. However, self-conscious pluralists would not reasonably ask the government to confiscate the property or resources of other citizens nor would they require that government coopt the time and energy of other citizens for the purposes of equalizing some notional possession of resources. For pluralists, who have their own purposes to pursue, the government is not properly understood as a cooperative enterprise, but a means of peaceful coexistence. Conceiving of the government as the manager of a substantive collective enterprise to equalize all of its citizens in some way or another is a direct contradiction of the notion that there are multiple objectively and subjectively reasonable values and commitments, and that, though there can be reasonable judgments between such values and commitments (and the lives they support and promote), there is no reason that the government should be supposed to be in possession of superior powers of judgment concerning these matters. Nor is there any reason to believe that there is a single enterprise that should trump the specific enterprises of the various individuals and groups that compose a political community.

3

Conclusion

My assessment of modus vivendi pluralism and egalitarian pluralism might best be classified as one example of the “Goldilocks” problem. On the one hand, modus vivendi pluralism is too hot. That is, it exaggerates the incommensurability of values to the extent that it underestimates what pluralism implies about political life, at least for pluralists themselves. On the other, egalitarian pluralism is too cold. That is, it suppresses the importance of incommensurability and the importance of the special obligations and personal commitments of individual and groups, and, thus, considers the political implications of pluralism to be of secondary importance. In Chapter 6, I will argue that self-conscious value pluralists would reasonably choose negative liberty as the primary political value that distinguishes regimes that respect pluralism from those that do not. The government’s protection of negative liberty is the primary value of a pluralist state because of the various possibilities that negative liberty preserves and supports. It preserves a space within which each person can

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pursue her own projects and act on her own commitments; it allows for the possibility that she might change her mind about her commitments, projects, and the entire direction of her life; it preserves and supports the idea that good human projects and commitments are plural and that there is no single hierarchy that could be composed which would be acceptable to all; and it preserves and supports the notion that projects and commitments which do not violate the minimum content of morality should be allowed to flourish without fear or favor from government or from our fellow citizens.

CHAPTER 6

Liberal Pluralism, Negative Liberty, and Toleration

Abstract This Chapter discusses two varieties of liberal pluralism: welfare liberal pluralism and classical liberal pluralism. It argues that, between welfare liberal pluralism, with its focus on personal autonomy and positive liberty, and classical liberal pluralism, with its focus on negative liberty and toleration, self-conscious value pluralists would reasonably prefer the latter. Welfare liberal pluralists place too much emphasis on personal autonomy as a pre-political value, and thus also claim that individuals have positive liberty concerns, which necessarily involve paternalistic and coercive governmental measures which interfere with the commitments, plans, and projects of their fellow citizens. Value pluralists would reject the notion that any pre-political value overrides all others, and instead reasonably conclude that the protection and promotion of negative liberty ought to be considered as the rebuttable first priority of an authentically pluralist political community, and that positive liberty concerns with values like autonomy are best left to the individuals in the community themselves. Keywords Liberal pluralism · Classical liberal pluralism · Welfare liberal pluralism · Negative liberty · Positive liberty · Toleration · Indifference · Isaiah Berlin · Autonomy · Freedom of association

© The Author(s) 2021 K. B. McIntyre, Nomocratic Pluralism, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-53390-8_6

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In Chapter 5, I discussed two varieties of pluralist political theory, concluding that both modus vivendi pluralism and egalitarian pluralism suffer from inadequate conceptions of pluralism itself which then lead to political theories that would be unacceptable from a pluralist perspective. In this chapter, I examine liberal pluralism and conclude that, between welfare liberal pluralism, with its focus on personal autonomy and positive liberty, and classical liberal pluralism, with its focus on negative liberty and toleration, self-conscious value pluralists would reasonably prefer the latter.1 Welfare liberal pluralists place too much emphasis on personal autonomy as a pre-political value, and thus also claim that individuals have positive liberty concerns which necessarily involve paternalistic and coercive governmental measures which interfere with the commitments, plans, and projects of their fellow citizens. I will argue that self-conscious value pluralists would reject the notion that any pre-political value overrides all others, and instead reasonably conclude that the protection and promotion of negative liberty ought to be considered as the rebuttable first priority of an authentically pluralist political community, and that positive 1 For examples of generic liberal pluralists, see Isaiah Berlin, “Introduction,” Liberty, Henry Hardy, ed. (Oxford: Oxford University Press, 2002) 3–54; Isaiah Berlin, “Two Concepts of Liberty,” Liberty, Henry Hardy, ed. (Oxford: Oxford University Press, 2002) 166–217; Isaiah Berlin, “Equality,” Concepts and Categories (Princeton: Princeton University Press, 1978) 81–102; Isaiah Berlin, “The Pursuit of the Ideal,” The Crooked Timber of Humanity: Chapters in the History of Ideas, Second Edition, Henry Hardy, ed. (Princeton: Princeton University Press, 2013) 1–20; Isaiah Berlin and Bernard Williams, “Pluralism and Liberalism: A Reply,” Political Studies 44 (1994) 306–309; Stuart Hampshire, Justice is Conflict (Princeton: Princeton University Press, 2000); and Bernard Williams, In the Beginning Was the Deed: Realism and Moralism in Political Argument, Geoffrey Hawthorn, ed. (Princeton: Princeton University Press, 2005). For examples of welfare liberal pluralists, Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986); George Crowder, Liberalism and Value Pluralism (London: Continuum Books, 2002); Stephen Macedo, Liberal Virtues: Citizenship, Virtue, and Community in Liberal Constitutionalism (Oxford: Clarendon Press, 1990); James Griffin, On Human Rights (Oxford: Oxford University Press, 2008); and Charles Larmore, The Autonomy of Morality (Cambridge: Cambridge University Press, 2008) For classical liberal pluralists, see Michael Oakeshott, On Human Conduct (Oxford: Clarendon Press, 1975); Gerald Gaus, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World (Cambridge: Cambridge University Press, 2011); Gerald Gaus, The Tyranny of the Ideal: Justice in a Diverse Society (Princeton: Princeton University Press) 2016; Chandran Kukathis, The Liberal Archipelago: A Theory of Diversity and Freedom (Oxford: Oxford University Press, 2003); William A. Galston, Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice (Cambridge: Cambridge University Press, 2002); and Loren Lomasky, Persons, Rights, and the Moral Community (Oxford: Oxford University Press, 1987).

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liberty concerns with values like autonomy are best left to the individuals in the community themselves. I am not suggesting that negative liberty is the only kind of freedom important to human beings. Instead, pluralists will be justly dubious of coercive restrictions on or interference with their negative liberty to pursue their own plans and live their own lives by the government in order to realize elements of positive liberty, like self-respect or capacities for success in life, for other citizens, or even for themselves. That is, the public morality of a political/legal community composed of self-conscious value pluralists would consider the protection of negative liberty as the first responsibility and the differentia of a pluralist government (maintaining order and security are responsibilities of all government, and therefore not unique to pluralist states).2 This public morality consists of the thin area of agreement as to what constitutes the rules of peaceful coexistence, and provides an institutionalization of the minimum content of morality discussed in chapter four. In a similar fashion, Gerald Gaus distinguishes between “the social world that characterizes one’s ‘comprehensive perspective’ [i.e. one’s private morality] and the ‘public social world’ of rules and institutions that is collectively created by members of society [i.e. the public morality].”3 So, private morality consists of an individual’s particular configuration of general and special obligations, her personal commitments, plans, and projects. That is, private morality manifests itself in the variety of ways in which individuals and groups of individuals choose to live their own lives. On the other hand, public morality consists of the rules that constitute what counts as peaceful coexistence, including general commitments to tolerance of, and forbearance and impartiality toward the private morality of others, which citizens owe to each other as citizens and which the government owes to 2 Even the International Socialists in the Soviet Union and the National Socialists in Germany maintained traditional systems of criminal law and traditional police forces and judicial systems. They also created parallel systems of political ‘justice’ which were run by party activists in a purely ideological way, but every functional government maintains order and security as a primary responsibility. 3 Gaus, Tyranny of the Ideal, 177. This distinction between private and public morality is to be distinguished from the distinction offered by Max Weber and Stuart Hampshire between the private and personal morality of the private citizen, and the public morality proper to public officials. Weber called the first an ethic of conscience and the latter an ethic of responsibility. Max Weber, “Politics as a Vocation,” From Max Weber: Essays in Sociology, H.H. Gerth and C. Wright Mills, eds. (New York: Oxford University Press, 1946) 77–128; and Stuart Hampshire, “Public and Private Morality,” Public and Private Morality, Stuart Hampshire, ed. (Cambridge: Cambridge University Press, 1978) 23–53.

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its citizens as citizens. As a complement to negative liberty as the unique responsibility of a self-consciously pluralist government, the first virtue and the differentia of the public morality of a pluralist community would be toleration of others, especially toleration of what others choose to do with their liberty. In this chapter, I refer to this variety of liberal pluralism as classical liberal pluralism, but I offer a specification of this sort of liberal pluralism in chapter seven which deals with the further institutionalization of the protection of negative liberty by law. I will refer to this further specification of liberal pluralism as nomocratic pluralism.

1

Pluralism and Politics

If one accepts that the claims of value pluralism are more or less convincing, what are the implications for political theory and political practice that follow? The first implication of the acceptance of value pluralism would be that politics, understood as a way of managing the diversity of citizens’ conceptions of the good life, is an inherently necessary aspect of human life because of the inevitability of moral or value conflict. Political activity here is understood as involving the use of persuasive, not demonstrable, practical reason and speech in order to come to some sort of agreement about the conditions in which individuals and groups can peacefully pursue their visions of the good life. Since there is no single version of the good life that overrides all others and since conflicts between values cannot be resolved by reducing all values to one overarching value, the political community is best understood, not as a fair system of cooperation or a collective enterprise in pursuit of a substantive goal, but as a means of peaceful coexistence among people with their own lives to live. The state is understood to be a community which provides an arena of peaceful (more or less) coexistence (more or less) for people who do not share a single substantive purpose and who do not necessarily (but may) share beliefs about or commitments to a single version of what makes for a good human life. This conception of the state is the most reasonable way to address both the empirical reality of pluralism, and it is also what self-conscious value pluralists would recognize as the character of a pluralist state. However, the state or political community, conceived as an area in which individuals can peacefully pursue their own ends, will not be asked to make conflict disappear, since, as we have seen, conflicts among values are an inherent part of the human condition. Instead, the state

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or government will necessarily involve a permanent institutional means of resolving particular conflicts, i.e., an adjudication function.4 It also requires a permanent institutional means of considering and authorizing rules which condition individuals’ and groups’ pursuit of their values, i.e., a legislative function. And it involves a permanent institutional means of enforcing the various laws that have been authorized by the legislative institution, i.e., an executive function. These three functions don’t necessarily have to be separated, and none of them requires a particular kind of constituted authority (i.e., value pluralism does not require democracy or any other specific authorization procedure).5 This skeletal institutional outline suggests that the most appropriate institutional framework for a “value pluralist” politics strongly resembles the institutional structures that characterize political liberalism, and it is indeed the case that most value pluralists who have attempted to consider politics from the pluralist perspective have concluded that the appropriate political manifestation of value pluralism is some sort of political liberalism. Liberalism has been historically identified with the promotion of human liberty, whether in its negative or positive form. True-believing moral monists have no real reason to care about negative liberty, because monism generally produces a politics of truth and, if one has the truth, why should one care about freedom? There is no right to be wrong, and, of course, heresy has no rights, and it makes scant difference whether this sort of claim is promulgated by the Inquisition, the Soviet Commissars, the leaders of the Cultural Revolution, contemporary Islamic fundamentalists, Antifa fanatics, or the proponents of Black Lives Matter.6 However, if one rejects 4 For Hampshire, this is the primary characteristic of liberal pluralism, and he writes that “fairness in procedures for resolving conflicts is the fundamental kind of fairness…: fairness in procedure is an invariable value, a constant in human nature [and] any organized society requires an institution and also a procedure for adjudicating between conflicting moral claims advanced by individuals and groups within a society.” Stuart Hampshire, Justice Is Conflict (Princeton: Princeton University Press, 2000) 4, 7. 5 Berlin famously, or infamously, observed that democracy and negative liberty are not complementary concepts and, indeed, don’t necessarily have much to do with each other. Berlin, “Two Concepts of Liberty,” 174–178. For a recent critique of democracy which shares some of Berlin’s doubts about the connection between liberty and democratic regimes, see Jason Brennan, Against Democracy (Princeton: Princeton University Press, 2016). 6 It is striking that the one thing that these political religions share is that their ‘facts’ are almost always empirically false. See, for example, Heather McDonald’s dismantling of the arguments of BLM to the extent that BLM’s slogan is a great deal more accurate if

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monism and embraces value pluralism, then liberal politics, insofar as they are concerned with the preservation and promotion of liberty, makes perfect sense. It is, of course, not the case that anything goes or that every choice is acceptable, but that, since there is no one thing that is always right, individuals should be allowed to choose their own course in life, including the right to change that course on occasion. This sort of pluralistic liberalism contrasts not only with monistic ideologies like socialism, communism, fascism, etc., but also with ideological or monistic liberalism.7 Ideological liberalism, whether in its social-welfare or libertarian versions and like its liberal moral counterpart, views conflict as evidence of ignorance or wrong-doing, and aspires to eliminate such conflict by creating a single decision procedure (again, an appeal to a principle like utility or the categorical imperative) which can resolve every dispute. Here, the liberal state is merely an administrative institution, and manifests the ironic purpose of ideological liberalism as an anti-political political theory. In addition to reducing the sphere of politics to practical nonexistence, and because they reject the claims of value pluralism, these anti-pluralist liberals tend to be intolerant of those that they view as intolerant. Because of this sort of intolerance, they discount the importance of both freedom of association and property rights, viewing both as probable instruments of anti-liberal discrimination. This has the effect of placing narrowly circumscribed limits on the kinds of goods that can be legitimately pursued by citizens.8

you remove the ‘v’ from the middle of it. Heather McDonald, The War on Cops: How the New Attack on Law and Order Makes Everyone Less Safe (New York: Encounter Books, 2016. 7 Ideological politics is monistic insofar as it reduces the variety of values to a single overriding value. For communists and socialists, the overriding value is a materialist egalitarianism which inevitably produces Procrustean politics. For fascists, the overriding value is a biological racialism which, in its National Socialist manifestation, produced an eliminationist politics. What ideologies also have in common is their commitment to the replacement of politics by ‘the administration of things.’ So, ironically, the end (purpose) of ideological politics is the end (completion/elimination) of politics. For a brief discussion of the monistic nature of communism and socialism, see Eric Mack, “Isaiah Berlin and the Quest for Liberal Pluralism,” Public Affairs Quarterly 7 (1993) 215–230. 8 For a specific critique of Rawls’ understanding of liberal toleration, see Kukathis, The Liberal Archipelago, 120–126.

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Pluralism and Liberty

While liberal value pluralists, for the most part, have shared notions about the general structure of liberal institutions, there are significant differences among them concerning other questions. The most salient differences concern, first, the question of the proper value or priority placed upon liberty or freedom, and, second, the question of the limits, if any, of public/political toleration of non- or anti-liberals and non- or anti-pluralists. In this section, I examine the character of human freedom or liberty. I examine the nature and importance of toleration to liberal pluralists in the last section of this chapter. Regarding the place of liberty, the tradition of liberalism itself has always considered liberty as one of the most important moral and political values, if not the most important. Given that value pluralists reject the notion of an overriding moral value, it is obvious that liberty cannot be considered in that way. But what is liberty or freedom? I am not concerned here with philosophical controversies about free will and determinism, though my account of practical reason and morality presupposes a certain sort of freedom. That is, human beings are understood as intelligent (or not-so-intelligent) creatures who act in terms of their understandings (or misunderstandings) of their situations. So, human beings are “free” actors as opposed to, for example, the tides, the planets, plants, or other animals because the actions of human beings are not solely the result of natural causation, whether biological, genetic, or physical. As Michael Oakeshott explains, an agent “is ‘free’ because his response to his situation, like his situation itself, is the outcome of an intelligent engagement. Indeed, what is called ‘the will’ is nothing but intelligence in doing; in denying ‘will’ to an ebbing tide we are refusing to recognize it as an exhibition of intelligence.”9 Freedom in this context is a presupposition of human practical action. So, the doctrine of determinism might be true, in some sense, but, if it becomes accepted it would require a complete transformation of the language of practical life. As Isaiah Berlin notes, “the arguments in favor of [determinism] are not conclusive; and…if it ever becomes a widely accepted belief and enters the texture of general thought and conduct, the meaning and use of certain concepts and words

9 Oakeshott also observes that human action “is not…to be thought of as the fulfillment of an evolutionary drive, a genetic impulse, an organic want, or a psychological urge or tendency.” Michael Oakeshott, On Human Conduct (Oxford: Clarendon Press, 1975) 39.

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central to human thought would become obsolete or else have to be drastically altered.”10 Until the doctrine has been demonstrably proven, however, the presupposition that humans are free in the practical and moral sense remains operative. I will also reject without consideration the notion that freedom can be totally identified with rational action, and will thus avoid questions concerning, for example, whether God, understood as an omniscient, omnipotent, and omnibenevolent being, is free to do immoral or irrational things like command individuals to kill their children or to make two plus two equal seventeen.11 Instead, I will consider practical freedom or liberty to be, in the most general sense, understood in the following way. Human actions are free actions insofar as they are intelligent or not so intelligent responses to understood situations, and are not understood to be determined by purely naturalistic causes. People can offer reasons, though not necessarily good ones, in order to explain their actions and the actions of others, and they are reasons for humans to act, not causal “reasons” (e.g., one can explain why his heart beats physiologically but can’t give his reasons why his heart beats). As discussed in Chapter 4 in the section on practical reason, human beings’ situational appreciation includes both the facts of any particular circumstance, but also desires, beliefs, plans, etc., and these inform people’s choices in whatever circumstances or situations in which they find themselves. However, there are obviously some circumstances or situations in which it would be factually inaccurate to attribute the adjective “free” to a person’s movements. As mentioned above, people do not freely will their heart to beat or their kidneys to function, nor do they normally choose to alter their internal bodily mechanics, so there are all sorts of internal but involuntary movements taking place at any time 10 Isaiah Berlin, “Introduction,” Liberty, Henry Hardy, ed. (Oxford: Oxford University Press, 2002) 5. P.F. Strawson makes a similar argument in his essay “Freedom and Resentment,” and Galen Strawson points out the connection between the presupposition of freedom and practical or moral judgments when he writes that the determinist position is that “in the end, luck swallows everything: this is one way of conveying the fundamental respect in which there can be no ultimate responsibility.” See P.F. Strawson, “Freedom and Resentment,” Freedom and Resentment and Other Essays (London: Routledge, 2008) 1–28; and Galen Strawson, “Luck Swallows Everything,” Things that Bother Me: Death, Freedom, the Self, etc. (New York: New York Review Books, 2018) 107. 11 As John Gray notes, “the conception of rational choice that is appropriate [in discussions of freedom] is a minimalist and meagre one, stipulating only that an agent should have a reason for what he does.” John Gray, “On Negative and Positive Liberty,” Liberalisms: Essays in Political Philosophy (London: Routledge, 1989) 59.

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inside any person. A person who has fallen off a cliff is not “freely” falling, but is being acted on by an external force called gravity. So both internal and external forces can render action unfree. More complicated cases include persons with diseases or phobias or compulsive behavior problems. For example, the person with Tourette’s syndrome utters profanity involuntarily, the acrophobic experiences nausea and extreme vertigo when at great heights, and the kleptomaniac feels compelled to steal. These situations are approximations or, perhaps, analogous to the earlier examples insofar as the persons seem to be engaged in movements which are not controlled by themselves, but by forces either internal or external to them. So, freedom, understood as a postulate of practical action, can be limited or eliminated by natural forces, like disease or gravity, by internal forces, like bodily functioning or malfunctioning, or even other natural incapacities like blindness or deafness. These limitations, however, insofar as they fall outside the sphere of human action itself are not the subject of moral, practical, or political liberty, or lack thereof. Instead, in moral, practical, or political situations, liberty is best understood in two distinct ways that have traditionally been referred to as negative and positive liberty. Without the presupposition of the general character of freedom of human action, neither negative nor positive liberty would be intelligible at all. Nonetheless, there is a similarity between certain sorts of limitations on practical liberty and the limitations on freedom occasioned by natural forces in that offering an account of both types involves detailing the different ways in which free acts fail to be free or fully free. Concerning this characteristic of actions, J. L. Austin notes that the word “‘free’ is…used to rule out the suggestion of some or all of its recognized antitheses,” and, thus, any account of freedom will necessarily concern the ways in which freedom is qualified, limited, or eliminated.12 The character of negative liberty certainly coheres with Austin’s observation. Negative liberty is best understood as freedom from interference, especially of the harmful sort, by other human beings (e.g., Rhett wants to ride his bike to the supermarket, but Bob robs him of his bike at gunpoint, or the local city council has forbidden bike riding on the public streets, or Bill has punctured his tires, or the local government has confiscated his bike to be used in an auction to raise money for the homeless.) 12 J.L. Austin, “A Plea for Excuses,” Philosophical Papers, 3rd ed. (Oxford: Clarendon Press, 1979) 180.

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As Eric Mack defines it, “An individual’s liberty is understood as that individual not being subject to interference by other agents in her doing as she sees fit with her own person and legitimate holdings.”13 Isaiah Berlin describes negative liberty as the “absence of obstacles to possible choices and activities.”14 And Jan Narveson states that negative liberty is “the absence of factors that would prevent [a person] from doing x.”15 So, negative liberty is commonly associated with an absence of hindrances, impediments, or other barriers to action. There is little positive content, though it does make some sense to suggest that a person who is free from such obstacles is free to do what she desires, so that a person’s preferences eventually play a role. Nonetheless, it the absence of obstacles, specifically obstacles created by human beings which are intended to be obstacles, and not the presence of any particular capability, capacity, or skill which characterizes liberty understood in this negative way. So, in this sense, if there are no rules against it, slow people are free to compete in races, short people are free to play basketball, ugly people are free to enter beauty contests, and ignorant people are free to enter trivia contests. Indeed, since negative liberty does not concern the capacity or ability to succeed, one might say that Michael Moore is just as free as Usain Bolt to compete in races, that Danny DeVito is just as free as Luka Doncic to play basketball, that Rosanne Barr is just as free as Charlize Theron to enter beauty contests, and that the village idiot is just as free as the village Mensa member to enter trivia contests. More specifically, violations of negative liberty involve interference with a person’s freedom to act in a way that harms the person whose freedom is limited. John Stuart Mill made this question of harm into a maxim about the proper limitations on legitimate government regulation, and Jan Narveson offers the following as an updated version: “there is a delimitable sphere of action for each person, the person’s ‘rightful liberty’, such

13 Eric Mack, Libertarianism (Cambridge: Polity Press, 2018) 1. 14 Berlin, “Introduction,” 32. 15 Jan Narveson, The Libertarian Idea (Philadelphia, PA: Temple University Press, 1988) 23. Stuart Hampshire offers a view of negative liberty directly connected to his version of value pluralism. He write that “the essence of a liberal morality is the rejection of any final and exclusive authority, natural or supernatural, and of the accompanying compulsion and censorship. In this context, freedom itself is felt, and is cherished as a negative notion: no walls of dogma, no unquestionable rules from priests and politicians, the future is to be open for discovery.” Hampshire, Justice is Conflict, 35.

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that one may be forced to do or refrain from what one wants to do only if what one would do or not do would violate, or at least infringe, the rightful liberty of some other person(s). No other reasons for compelling people are allowable.”16 This harm principle both offers a principle of legislation providing a limited area in which government is authorized to act, and a further specification about the reciprocal nature of negative liberty. Negative liberty concerns providing a protected area around a human being so that she can live according to her particular commitments, plans, and projects. Harm consists of making a person’s situation worse off than it otherwise would have been either by physically harming her person, placing limits on her actions, or placing limits on her use of her own property without her consent. The reciprocal character of this conception of liberty is that each person recognizes that each other person has this sphere of independence which ought to be respected. So, physical violence against or imprisonment of another person or the destruction or theft of that person’s property, or the use of coercive threats to coopt that person into cooperating with one’s own personal projects or plans are all examples of harmful interference. On the other hand, it is often the case that individuals are harmed in the practice of some consensual activity. Competition in business might harm one of the competitors by driving her to bankruptcy, but the activity is consensual insofar as a person who opens a business consents to compete. Being criticized for one’s political, religious, or academic positions is one aspect of choosing to, that is, consenting to participate in political life, religious practice, or academia. In contrast, most people do not consent to violence against their person or property, nor do they consent, in an important sense, to being coerced into acting in ways contrary to their preferences. Coercion is a special example of harmful interference, and is somewhat different than sheer violence against persons and property in that coercion is used to force people to engage in actions, while violence does not necessarily involve the victim’s acting at all. For example, the rioters in Los Angeles who nearly beat Reginald Denny to death in 1992 were just beating him for the fun of it. They were not coercing him, strictly speaking, because they had nothing that they wanted Denny to do, other than suffer, of course. Coercion, unlike violence, involves using threats to

16 Narveson, Libertarian Idea, 7.

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present people with what Bernard Gert calls “unreasonable incentives.”17 That is, the person doing the coercing makes the victim an offer that she cannot reasonably refuse. So, for example, an armed man threatening another person by pointing a gun at her head and saying, “your money or your life,” is coercing her, while an unarmed man threatening another person by saying, “your money or I’ll call you a mean name” is not. Coercion can produce intentional actions which are not free, insofar as they are counter to what the victim would have chosen in the absence of coercion.18 Coercion is a lower level threat because it leaves open the possibility of acquiescence on the part of the victim (e.g., it is better that the perpetrator use coercion to steal the money instead of knocking the victim unconscious or murdering her). Nonetheless, coercion involves severe limitations on individual liberty, and, as Hayek notes, “coercion is evil precisely because it thus eliminates an individual as a thinking and valuing person and makes him a bare tool in the achievement of the ends of another.”19 Most criminal laws are directed against acts which violate the negative liberty of individuals, either through violence or coercion. These laws are themselves coercive, insofar as they threaten individuals with unreasonable incentives in order to get these individuals to avoid violating the negative liberty of others. Eric Mack argues that “coercion is permissible if (but only if) it blocks or nullifies the effects of…violations of liberty.”20 Thus, for the most part, from the perspective of negative liberty, laws constitute significant limitations on human freedom, though they are justified by the fact that, without them, negative liberty would be violated in a more thoroughgoing way. In Chapter 7, I will discuss the sort of liberty, in addition to the purely negative kind, that is possible under the rule of law. Here, I will merely suggest that many laws do not act coercively on most citizens because most citizens have no desire to commit the acts that are prohibited. Few will want to commit murder, arson, assault, or robbery, 17 For Gert’s discussion of unreasonable incentives, see Bernard Gert, “Coercion and Freedom,” Coercion: Nomos XIV , J. Roland Pennock and John W. Chapman, eds. (Chicago: Aldine-Atherton, Inc., 1972) 34–37. 18 Friedrich Hayek writes that “coercion occurs when one man’s actions are made to serve another man’s will, not for his own but for the other’s purpose.” F.A. Hayek, The Constitution of Liberty (Chicago: The University of Chicago Press, 1960) 133. 19 Hayek, Constitution of Liberty, 21. 20 Mack, Libertarianism, 2.

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and, without the desire, the threat is not exactly operative (e.g., “I will harm you if you breathe underwater, levitate, or come back from the dead” are not coercive statements since no one has the capacity to engage in the activities being prohibited). There are other sorts of laws which are not coercive in different ways (e.g., laws/rules which constitute the possibility of a particular activity, like rules concerning wills or marriage; and rules that require consent to apply, such as rules for playing a game). In contrast to negative liberty, positive liberty consists in the capacities of a person to succeed in his endeavors, and, in one version, is understood as self-mastery, self-determination, or autonomy. Berlin notes that positive freedom is “the wish on the part of the individual to be his own master…I wish to be the instrument of my own…acts of will.”21 So, if Bill is a slave to passion or a slave to fashion, no one need be interfering with his negative liberty, but he still doesn’t feel himself free because of his lack of self-discipline. In Seinfeldian terms, Bill is not the master of his own domain. The impediments to positive liberty understood as autonomous self-direction, then, include internal psychological difficulties like phobias or compulsive behaviors, but also would include other sorts of problems with the proper functioning of a person’s reason, like ignorance or false consciousness. Of course, individuals with phobias and compulsions often learn how to maintain the rational self-direction of their lives in spite of such difficulties. However, those ignorant of opportunities or so ignorant that they are not capable of taking advantage of opportunities, and those whose minds are thoroughly under the control of some alien ideology will not be capable of such management. The paradigmatic contemporary case of a person without control of himself is the addict, whose choices were initially free but who now has little control over his own life. Autonomy or self-direction is also often connected with some sort of conception of selfrealization or self-actualization. That is, Bill will only truly be free when he fulfills his true potential. Here, freedom is connected with success at becoming fully human, however that is defined. Of course, if these various concepts (e.g., autonomy and self-realization) involve reductive notions about the universal content of autonomy or self-realization, then moral monism has superseded value pluralism and such concepts are subject to all of the weaknesses of other forms of monism.

21 Berlin, “Two Concepts of Liberty,” 178.

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I have not expended as much space on the explanation of positive liberty as I did on the explanation of negative liberty because the connection between the two forms of liberty and the government is strikingly different. Government is considered a necessary evil when it comes to the protection and promotion of negative liberty. The laws it passes are coercive and limit individual liberty. At the same, such laws are necessary in order to preserve the liberty of the citizens against violations of that liberty by other citizens and by foreign aggressors. The question is always, what is the proper balance between the number and severity of the government regulations limiting freedom on the one hand and the danger to liberty of lifting such prohibitions on the other? The balance is not susceptible of some sort of algorithmic calculation, but will be made, if made intelligently, based upon the circumstances of a particular political community at a particular time with a particular political tradition, though the harm principle is a reasonable one for those worried about violations of negative liberty to consider central in attempting to balance the two “evils.” Conversely, when government gets involved in the promotion of positive liberty, it threatens the negative liberty of its citizens in every way by subtly converting itself into a morally and ideologically monistic teleocracy, that is to say, a collective enterprise managed by the government with the single telos of ‘forcing people to be free’ so that they can achieve autonomy or self-realization. Isaiah Berlin offers the classic account of how the positive liberty of the individual, when generalized to and made the responsibility of the political community as a whole, creates the intellectual and ideological conditions of paternalistic if not totalitarian government. Berlin observes that “all paternalist governments, however benevolent, cautious, disinterested, and rational, have tended, in the end, to treat the majority of men as minors, or as being too often incurably foolish or irresponsible; or as maturing so slowly as not to justify their liberation at any clearly foreseeable date.”22 In the next section, I explore the work of a group of welfare liberal pluralists, some of whom maintain that autonomy is the primary good of any good life. I begin, however, with a brief overview of Berlin’s version of liberal pluralism.

22 Berlin, “Two Concepts of Liberty,” 54.

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Welfare Liberal Pluralism

In this section, I discuss one species of liberal pluralism which I call welfare liberal pluralism. First, however, I will examine generic liberal pluralism in the work of Isaiah Berlin, the thinker most closely associated with value pluralism in the twentieth century. For liberal pluralists, negative liberty is an objectively good thing for human beings, though not the only objectively good thing for human beings. Human beings deprived of liberty suffer harm and live lives that are less good than those who are free to make their own decisions. However, negative liberty is only one value among many, and in the normal practical life of any particular human being, that individual might (actually, must) make choices that will limit her liberty. For example, she marries a particular man and thus, in most marriages, limits her freedom to have sex with other men; she has her own children, which limits her capacity to be indifferently generous; she chooses a career in the law, so is not free to practice medicine; she becomes a vegan, so is not free to eat meat, etc. The question arises thus for the liberal pluralist, “what does the place or importance of negative liberty in the private life of the individual mean for the public sphere of political activity?,” and, for generic liberal pluralists like Isaiah Berlin, no definitive answer is given. Negative liberty is one among many other values in political life, like equality, security, peace, prosperity, fraternity, etc. For Berlin, and other liberal pluralists, none of these values are overriding, so the answer in any particular case depends almost solely upon circumstances. This answer to the question of the priority of any particular political value is directly connected to the value pluralist rejection of the notion that there can be a single decision procedure or hierarchy of values that determinately resolves all moral, practical, or, here, political conflicts. Berlin himself never offers an extended treatment of the implications of value pluralism for political community, though his essay on liberty certainly offers strong evidence that he considers negative liberty a central political value. Berlin is interested in value conflicts which arise between cultures, but also with those that arise within a particular culture, and, even more specifically, within a particular individual. He writes that “the ideals of one society and culture clash with those of another, and at times come into conflict within the same society and, often enough, within the moral experience of a single individual;…such conflicts cannot

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always, even in principle, be wholly resolved.”23 Because of this, he is keenly aware of the importance of individual freedom, and writes his most famous essay, “Two Concepts of Liberty,” as a defense of the coherence and importance of negative liberty in the context of conflicts between values. In that essay, Berlin claims that “we are faced with choices between ends equally ultimate, and claims equally absolute, the realization of some of which must inevitably involve the sacrifice of others. Indeed, it is because this is their situation that men place such immense value upon the freedom to choose.”24 Berlin explicitly relates the political importance of being free from coercion with the recognition that values are inherently plural and conflicting, and, thus, if human beings are to be held morally, politically, and/or legally responsible for their valuations and actions, it must be the case that they are allowed to choose them. Negative liberty, in the political sense of the term, is a value intimately connected with the recognition of value pluralism. Indeed, for Berlin, “without [liberty] there is no choice and therefore no possibility of remaining human as we understand the world.”25 However, at the same time, Berlin insists that negative liberty is just one value among many, and it must be weighed against others, and “may have to be curtailed in order to make room for social welfare, to feed the hungry, to clothe the naked, to shelter the homeless, to leave room for the liberty of others, to allow justice or fairness to be exercised.”26 These various values ought to be considered in the context of any particular policy decision, and the context itself will enter as much into the final decision as the valuations of liberty, equality, etc. Despite Berlin’s contention that negative liberty does not involve any claims about strong versions of autonomy, either of a Kantian moral kind which equates rationality with freedom or a personal version which defines autonomy as making informed, rational choices which lead to a self-directed life, some value pluralists have translated Berlin’s emphasis on the importance of negative liberty into a concern with autonomy.27 Autonomy here is understood as the rational self-direction of one’s 23 Berlin, “Equality,” 96. 24 Berlin, “Two Concepts of Liberty,” 214 25 Berline, “The Pursuit of the Ideal,” 13. 26 Berlin, “The Pursuit of the Ideal,” 13. 27 See Berlin, “Two Concepts of Liberty,” 181–187.

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life, and is considered by the writers that I call welfare liberal pluralists as an essential element in any good life.28 James Griffin writes that “autonomy [is] a capacity to recognize good-making features of human life, both prudential and moral, which can lead to the appropriate motivation and action,” while Joseph Raz claims that “the ideal of personal autonomy…holds the free choice of goals and relations as an essential ingredient of individual well-being. The ruling idea behind the ideal of personal autonomy is that people should make their own lives. The autonomous person is a (part) author of his own life.”29 If autonomy is understood as the sort of rational self-direction that is a necessary part of any good life, then it is obviously the primary pre-political value, and, as such, narrows the character of pluralism considerably, as it rejects any non-chosen or non-rational life as possibly good.30 Further, given that autonomy, unlike negative liberty, consists of actual capacities or abilities, then welfare liberal pluralists require active government intervention in creating the conditions which lead to autonomy or even, or more dramatically, in creating autonomous individuals itself. Raz argues that “the principle of autonomy as I shall call the principle requiring people to secure the conditions of autonomy for all people, yields duties which go far beyond the negative duties of non-interference.”31 In this way, demands for autonomy lead to positive liberty claims, which necessarily lead to paternalistic, authoritarian, or even totalitarian limitations on the negative liberty of the citizens of the political community. Griffin states that “what the pursuit of a conception of a worthwhile life largely requires, and what a society might sometimes have some obligations to help provide, are the all-purpose means to pursue any plausible conception of a worthwhile life: that is, education, basic health, minimum material provision, help to overcome lack of key capacities, a fairly rich array of options, and so on,” while Raz claims that “governments are subject to autonomy-based duties to provide the conditions of autonomy 28 For examples of welfare liberal pluralists, see note 1 of this chapter. 29 James Griffin, On Human Rights, 156; and Joseph Raz, The Morality of Freedom,

369. 30 This claim that autonomy of this highly rationalized sort is a necessary part of any good life also has the unpleasantly arrogant and parochial implication that the lives of almost every human being who has ever lived or who is now living were and are vacuous in a debilitating way. 31 Raz, The Morality of Freedom, 408.

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for people who lack them.”32 For welfare pluralists, the government will be directly involved in creating and supporting a high floor of acceptable material and psychological conditions, when and if those conditions are adjudged to be necessary to the creation and support of fully autonomous citizens (e.g., fully subsidized public schools perhaps through graduate school; nationalized health care and day care; prohibitionist legislation concerning drugs, alcohol, cigarettes, pornography, prostitution, etc., regulations on working conditions; regulations on wages and prices, etc.) As I will discuss in the last section of this chapter on toleration, welfare pluralists also have a very low level of tolerance for non- or anti-liberal, or non- or anti-pluralist groups, not only because the individuals constituting those groups would likely not be considered autonomous human beings, but, more importantly, because such groups would be actively engaged in preventing their children from becoming so. If it is true that autonomy is the primary human value or capacity in a pre-political sense, then the state/government ought to make the cultivation of autonomy for all of its citizens the telos of governmental action. However, this claim involves a rejection of the kind of value pluralism defended in this project thus far. If there is no pre-political primary value, which is what I have argued, then there is no reason for the state/government to make achieving autonomy its single substantive priority. Indeed, as Chandran Kukathis suggests, “the opposition of choice and compulsion is not symmetrical. It is quite possible for the unchosen life to be regarded by the individual living it as worthwhile, even if it is not possible for the compelled life to be so regarded.”33 In fact, my labelling of these thinkers as welfare liberal pluralists is not the most accurate or felicitous appellation as the primary difference between welfare pluralists and classical liberal pluralists does not concern the provision of some sort of safety net for the poor or disabled. Classical liberal pluralists can reasonably accept and, indeed, require such a welfare provision, when it is couched in terms of fulfilling the minimum requirements of morality (e.g., that people have enough to eat, that they have clothes, shelter, etc.,

32 Griffin, On Human Rights, 162; and Raz, The Morality of Freedom, 415. 33 Kukathis, The Liberal Archipelago, 61. For an intriguing argument that autonomy

is not even a normal experience for sophisticated and well-educated citizens of modern liberal democracies, see Galen Strawson, “The Unstoried Life,” Things that Bother Me: Death, Freedom, the Self, etc. (New York: New York Review Books, 2018) 177–201.

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and lastly that some distinction is made between the deserving and undeserving poor).34 The difference is that the welfare pluralists attribute an anti-pluralist centrality to strong autonomy, which then leads to positive liberty claims, paternalistic and teleocratic government, and to intolerance on part of welfare pluralists of those who don’t accept pluralism or autonomy as central values. Finally, welfare liberal pluralists have not fully examined the implications for negative liberty of the nonvoluntary character of political community. Voluntary associations within a political community often limit the liberty of their members (e.g., religious sects like the Mormons, private schools and universities, closed-shop labor unions, large corporations like Google and Facebook, symphony orchestras or rock and roll bands, etc.), but such associations are usually characterized by voluntary entry and the right of exit. Since there is little opportunity for voluntary entry into a political community and no right of exit from political community as such, negative liberty is all the more important (for the pluralist) as it reserves a space in which the individual as individual can make her own choices about what is and is not a good life for her, what sorts of commitments she wants to make, and what sorts of plans or projects are suitable to her in her circumstances. 2.2

Classical Liberal Pluralism/Nomocratic Pluralism

Berlin famously denies that his essay on liberty offers a defense of the priority of negative liberty, and is rather explicit about his commitments to the politics of the welfare state and the non-radical left.35 However, 34 For the minimum requirements of morality, see chapter four. Frankfurt convincingly argues that the notion of sufficiency is most relevant in question concerning welfare. If all have enough, there is no need to redistribute anything at all. Harry Frankfurt, “Equality as a Moral Ideal,” The Importance of What We Care About (Cambridge: Cambridge University Press, 1988) 134–158. 35 Berlin writes that “legal liberties are compatible with extremes of exploitation, brutality, and injustice. The case for intervention, by the State or other effective agencies, to secure conditions for both positive, and at least a minimum degree of negative, liberty for individuals, is overwhelmingly strong.” Steven Lukes, an admirer of Berlin’s work, notes that “Berlin was always unmistakably, if watchfully and cautiously, a man of the left, an enthusiast for the New Deal, and a supporter of the postwar Welfare State.” Eric Mack, a critic of Berlin, suggests that “no critical response to his ‘Two Concepts of Liberty’ seems to have disturbed Berlin more than the charge that he intended in that essay to defend a regime of private property and markets.” Berlin, “Introduction,”

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his critics and some of his admirers may be better readers of Berlin than Berlin himself, as his defense of the importance of negative liberty is derived directly from his commitment to value pluralism. This ties negative liberty as a political value to pluralism in a way that is missing from other political values like equality, order, and security. Indeed, the logic of Berlin’s defense of the political value of negative liberty leads to a defense of a different species of liberal pluralism which I will call classical liberal pluralism, which places the highest political priority on preserving the negative liberty of citizens to lead their own lives according to their own commitments. In this section, I argue that self-conscious value pluralists would reasonably choose negative liberty as the primary political value that distinguishes regimes that respect pluralism from those that do not, and I will call this sort of political arrangement classical liberal pluralism.36 The government’s protection of negative liberty is the primary value of a pluralist state because of the various possibilities that negative liberty preserves and supports. It preserves a space within which each person can pursue her own projects and act on her own commitments; it allows for the possibility that she might change her mind about her commitments, projects, and the entire direction of her life; it preserves and supports the idea that good human projects and commitments are plural and that there is no single hierarchy that could be composed which would be acceptable to all; and it preserves and supports the notion that projects and commitments which do not violate the minimum content of morality should be allowed to flourish without fear or favor from government or from our fellow citizens. Indeed, Eric Mack suggests that negative liberty is not

38; Steven Lukes, “The Singular and the Plural: On the Distinctive Liberalism of Isaiah Berlin,” Social Research 61 (1994) 697; and Eric Mack, “Isaiah Berlin and the Quest for Liberal Pluralism,” Public Affairs Quarterly 7 (1993) 226. 36 Both Eric Mack and Gerald Gaus argue that the high value placed on the defense of negative liberty is closely connected to the truth of value pluralism. Similar arguments are made by David McCabe, who claims that the political priorities of classical liberal pluralism are a commitment to the harm principle and opposition to paternalism, and Chandran Kukathis, who writes that “the fundamental principle describing a free society is the principle of freedom of association. A first corollary of this is the principle of freedom of dissociation. A second corollary is the principle of mutual toleration of associations.” Mack, Libertarianism; Gaus, The Tyranny of the Ideal; David McCabe, Modus Vivendi Liberalism: Theory and Practice (Cambridge: Cambridge University Press, 2010) 4; and Kukathis, Liberal Archipelago, 4.

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so much a political value as a necessary condition for the pursuit of any value. He writes that: respect for liberty is not a substantive political value to be promoted either in conjunction with other values or in splendid isolation. Rather, it is a principle that regulates the pursuit of substantive values by individuals and groups. Liberty serves as the core norm of a public framework within which individuals and groups are free to pursue their respective and distinctive ends and commitments subject only to their according a like freedom to others.37

Thus, negative liberty as a political value is unlike almost any other because, unlike most other human values, it is both non-substantive and non-teleological, and because noninterference is one of the necessary conditions which offer citizens the opportunity to live their lives according to their personal conceptions of what is decent, good, and true. Further, the plural nature of value and valuation, and the incompatibility and incommensurability of values with each other strongly suggest that governments should not be engaged in the promotion of particular substantive conceptions of the good life, but should remain neutral, in some general form.38 Of course, government cannot be completely neutral, as it must prohibit violations of negative liberty rights and must rule out some versions of the good life as incompatible with the minimum content of morality (e.g., the life of the slave owner, the torturer, the thief, the rioter, etc.). However, general government neutrality concerning acceptable values and visions of the good human life rules out the consideration of the promotion of positive liberty, understood as achieving some sort of self-mastery or self-fulfillment, as a political goal. This is not to suggest that autonomy, self-mastery, or self-realization are unimportant values. Such values are often central to a particular individual’s conception of what it means to be fully human. However, these values 37 Mack, “Isaiah Berlin,” 223. 38 There are disagreements among the value pluralists about the importance of govern-

ment neutrality about concepts of the good, but, even those who are critical of government neutrality reject the notion that the government should be in charge of choosing one or only a few values and forcing their pursuit onto the backs of the citizenry. For differing views on neutrality, see Charles Larmore, Patterns of Moral Complexity (Cambridge: Cambridge University Press, 1987) 50–55; and John Kekes, The Morality of Pluralism (Princeton: Princeton University Press, 1993) 203–211.

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are not universal, nor are they necessary to every possible good human life. Having government “enforce” them inevitably involves interference in the negative liberty of other citizens in that government must choose whose positive projects are most important and then coopt other citizens’ persons (or, at least, their time) and their property for purposes other than their own. Finally, it is beyond the competence of government to provide positive liberty. It cannot lead people to self-mastery, give them self-respect, or enable them to realize their full potential. Heteronomous self-realization is oxymoronic, and forcing people to be free is just as nonsensical now as it was when Rousseau first proclaimed its necessity. The arguments for the primacy of negative liberty often reflect Berlin’s own defense cited above, and include reference to the great diversity of values and valuations, their inevitable incompatibility and incommensurability, and the need for governments to protect individuals and groups from interference in their pursuit of such values from other individuals and groups and from government itself. As William Galston writes, “a free society…will defend the liberty of individuals to lead many different ways of life. It will protect a zone within which individuals will freely associate to pursue shared purposes and express distinctive identities…[There will be a] rebuttable presumption in favor of liberty.”39 The public morality of such a pluralist state will emphasize the notion that, if something is not prohibited, it is permitted, not the idea that, if something is not permitted, then it’s prohibited. The former is more conducive to living in a society committed to allowing individuals and groups to pursue their own ideas of the good life.40 Further, in the classical liberal pluralist state, individuals and groups have no claim on the resources of others in the pursuit of their projects, and government has no responsibility to assist any individuals or groups in their projects. As Mack suggests, “we honor others as agents with rational ends of their own not by promoting their ends as we do our own—to follow that course would be to treat ourselves as means to 39 Galston, Liberal Pluralism, 19. In a similar fashion, Loren Lomasky claims that “because persons are separate beings individuated in part by virtue of the particular projects to which they commit themselves, they are rationally entitled to insist that they be let alone to pursue their own designs and not be enlisted in as adjuncts to the projects of others.” Lomasky, Persons, Rights, and the Moral Community, 99. 40 The distinction between a public morality of prohibitions and one of permissions is taken from Gerald Gaus, The Tyranny of the Ideal: Justice in a Diverse Society (Princeton: Princeton University Press, 2016) 187–198.

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others’ ends—but, rather, by not sacrificing others to our ends.”41 The impartiality of the government to its citizens is derived from its recognition that, outside of the prohibition of overtly and explicitly immoral projects and the maintenance of order and security, government has no special projects of its own and its primary responsibility is, through protection of negative liberty and the rule of law, being the custodian of the conditions of peaceful coexistence.42 Negative liberty, understood as noninterference with one’s person or legitimate property by other citizens or by the government itself, will manifest itself in a variety of ways, including freedom of conscience (e.g., control over one’s person, freedom of movement, freedom of religious exercise, freedom of speech, freedom to publish, etc.), property rights (e.g., the right to private property, the right to contract, etc.) and freedom of association (e.g., the right to associate with others, the right to exclude others, the right to disassociate with others/right of exit, etc.). Negative liberty, as mentioned above, is not associated with the capacity to be successful in any of one’s projects or commitments, so human failure is not necessarily a sign of a lack of freedom. It is not connected with the ability to develop or conceive of an authentically good or successful version of the good life, so a lack of imagination does not equal a lack of liberty. Finally, it is not related to any such conception as self-realization or self-actualization or becoming fully human, as these are too vague and indeterminate to qualify a person’s freedom or lack thereof. However, it should be apparent from the discussion of valuation and value conflict in chapter three that these various kinds of negative liberties will conflict with each other, and that there is no single decision procedure to solve the question of which should outweigh the others in all situations or in any situation. There will also inevitably be conflicts between negative liberty and other political values, like order or security. The state may be invaded by a foreign enemy, some sort of pandemic disease might arise, riots might occur that threaten the possibility of order, or famine/drought might pervade the land. The minimum

41 Mack, Libertarianism, 48. 42 As Daniel Weinstock notes, “if value pluralism is true, then states should not impose

any particular value but should let a hundred flowers bloom. Political institutions that refrain from imposing any particular set of values and afford their citizens space within which to come to their own conclusions about matters of the good are therefore to be preferred.” Daniel M. Weinstock, “The Graying of Berlin,” Critical Review 11 (1997) 493.

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morality itself might be threatened, and, as has already been suggested, a floor of minimum material provision will almost certainly have to be provided (if it can be afforded) for the deserving poor, disabled, and elderly. Nonetheless, the self-conscious value pluralist would reasonably require that, all things being equal, government should operate with a presupposition in favor of protecting the negative liberty of its citizens. Negative liberty rights generally require only forbearance on the part of others and of the government (e.g., property rights create a zone in which interference is not allowed, speech rights require only non-interruption, etc.), but that forbearance is a necessary condition for such rights to be effective. As Loren Lomasky notes, “liberty is unique among goods necessary for project pursuit in that it must be provided by others if it is to be enjoyed at all.”43 In contrast, positive liberty rights generally require positive material action on the part of others and of government, usually including the cooptation of the time and material resources of others and of government (e.g., the right to employment, the right to health care, the right to be served in a restaurant/hotel/etc.).44 As mentioned above, there are three different categories of negative liberties that merit consideration. First, there are the rights of conscience directly connected to the integrity of the individual person, such as control over one’s person, freedom of movement, freedom of religious exercise, freedom of speech, freedom to publish, etc. Conscience rights are central to human identity and violations of them indicate the most severe sort of harms that individuals, groups, and governments can inflict on others. Second there are rights to property, such as the right to own property in various forms, copyright/trademark rights, the right to contract, etc. Property rights are central to human beings because they allow individuals to fulfill their obligations and commitments, and to pursue their plans and projects in ways that they see fit. And, third, there are freedom of association rights, such as the right to associate with others, the right to exclude others, the right to disassociate with others/right of exit, etc. For the most part, conscience rights are accepted by all value pluralists and by liberal monists of various sorts. Property rights are much more controversial but, in chapter seven, I argue that an extensive conception of property rights,

43 Lomasky, Persons, Rights, 97. 44 The most important positive liberty right for value pluralists is the right to be a

suitor in a court of law. I will discuss this right and those connected with it in Chapter 7.

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connected with market mechanisms, is an essential element of the sort of classical liberal pluralism that I call nomocratic pluralism. Association rights, however, have not been given the attention that they deserve, so I focus on the importance of them for pluralist politics in the concluding portion of this section. Negative liberty is importantly manifested and institutionalized in the right of free association, which also entails the right to disassociate, the right to exclude people from private associations, and the right to expel people from private associations.45 Association rights allow for individuals and groups to pursue their sometimes odd and sometimes objectionable conceptions of the good life without having to ask permission and without forcing outsiders to participate. One aspect of freedom of association is the right to exclude people from membership or participation in the association. For example, the Roman Catholic Church does not allow women to be priests. Up until very recently, the Augusta National Country Club did not allow non-whites or women to be members. Sororities exclude males and fraternities exclude females. Mensa excludes anyone outside the 98th percentile of intelligence. London clubs like the Atheneaum or White’s are invitation-only. The Princeton Club excludes non-Princeton graduates. That is to say, freedom of association is defined as much by exclusion from association as by association, but the variety of the purposes and practices of such clubs are manifestations of the variety of valuable lives that pluralists claim characterize normal human life. The freedom manifested by these associations is the freedom to associate or disassociate, and these associations manifest their freedom by selecting some, excluding others, expelling still others, and directing the activities of the association according to its substantive purpose or purposes. An appreciation of the central importance of the right of association is one of the most significant differences between the varieties of liberalism which accept the validity of value pluralism and ideological or monistic liberalism. Noninterference in the projects of others is a primary virtue in a liberal pluralist society, even if these projects inconvenience some or offend many. For example, Jan is the owner of a breakfast restaurant, and, for some reason, insists on breaking her hard-boiled eggs on the big end, and she insists that her employees break hard-boiled eggs only on the big end. In fact, Jan is fanatical enough that, not only will she not serve 45 For Chandran Kukathis, freedom of association is the primary defining characteristic of a free or open society. See Kukathis, Liberal Archipelago, 74–118.

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hard-boiled eggs broken on the little end, she refuses to serve anyone who is a little-ender. For the liberal pluralist, this is perfectly acceptable activity on the part of a private citizen who is pursuing her rather strange conception of the good life. It is also reasonable for both littleenders and those sympathetic with little-enders to criticize Jan’s prejudice as irrational and even mean-spirited. And, of course, if Jan attempts to persuade the legislature to ban little-end breakage or, even worse, to pass laws limiting the activity of all little-enders, then she is no longer engaged in noninterference, but is asking the government to endorse her admittedly eccentric valuation of egg-breaking.46 This example can obviously be applied to current controversies concerning bakers and their cakemaking choices, restaurateurs and their decisions on customer rules, youth organizations and their judgments concerning service qualifications, and adoption agencies and their rules on qualifications for adoption. Individuals in their capacity as private citizens are free to choose their bakeries and bakers, and so privately owned business owners ought to be able to choose their customers, even if their choices are not congenial to contemporary idées reçues. If negative liberty is the presumptive position that government should take, then government should be neutral concerning projects pursued unless the projects interfere in a seriously harmful way with other individuals or groups, and their projects. The default position should be non-interference in the choices of individuals and groups concerning with whom they associate, and any deviation from the default position should be considered purely temporary.

3

Pluralism and Toleration

The empirical fact that there are, and always have been, significant numbers of individuals or groups who do not accept value pluralism raises the question of how these individuals and groups ought to be treated in diverse and plural states. If, as I have suggested, negative liberty ought to be considered as the primary political value connected with the acceptance of value pluralism, then toleration ought to be considered the primary political virtue connected with such acceptance. As Peter Balint notes, 46 What if Jan goes about town proselytizing the little-enders? Obviously, proselytizing in an official capacity would qualify as impermissible interference but, in a private capacity, it might not. On the other hand, if Jan is interfering in other people’s business in an obtrusive way, it certainly might be viewed as unacceptable.

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“this is the good of a tolerant society; it is a society in which, comparatively speaking, people are freer to do or be what they want.”47 This toleration should be extended even to individuals and groups who do not acknowledge value pluralism or the value of negative liberty, e.g., freedom of conscience, private property rights, and freedom of association.48 As Chandran Kukathis writes: A society that upholds freedom of association, and so protects liberty of conscience, is a society for which the first virtue is toleration. It recognizes that people differ, that their commitments to their moral beliefs matter crucially to them, and that political institutions should afford them the capacity to live by those beliefs, even if this means, in the end, their living separately…[T]aking toleration seriously involves tolerating much that liberals are often unwilling to countenance, for it means that liberal societies should tolerate illiberalism in their midst.49

So, groups that do not share the pluralist liberal commitment to liberty ought to be tolerated unless they are actively violating the minimum character of morality mentioned above. Monastic communities, like Trappist Catholics and Buddhists, which reject autonomy as a central value, religious groups, like Christian Fundamentalists and orthodox Muslims, which endorse hierarchical conceptions of the relationship between men and women, and even racialist groups like Black Lives Matter or La Raza, which promote ascriptive group solidarity over individual liberty ought to be tolerated, as long as they do not interfere with the liberty of others to associate for reasons opposed (or indifferent) to their own.50 Toleration of such groups and similar individuals can be best understood as a

47 Peter Balint, Respecting Toleration: Traditional Liberalism and Contemporary Diversity (Oxford: Oxford University Press, 2017) 2. 48 The status of non- or anti-pluralists or non- or anti-liberals in a pluralist and liberal society raises interesting questions about immigration policy, assuming a political community believed immigration to be a good thing, especially whether or not to consider potential immigrants’ commitment either to pluralism and liberalism, or, at a minimum, to the modus vivendi or lowest common denominator morality. 49 Kukathis, Liberal Archipelago, 119–120. 50 When religious or racialist groups demand special recognition from the government,

when they encourage violence against others, when they demand that the negative liberty rights of others be curtailed, then they have moved beyond the bounds of acceptable political behavior in the classical liberal pluralist state.

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reciprocal arrangement by which such groups are guaranteed noninterference in their particular ways of life as long as they guarantee that they will neither interfere with the lives of nonmembers of their group nor prevent members of their group from exercising their right to exit the group. So, toleration conduces to peaceful coexistence, while also increasing the negative liberty of citizens, both pluralists and monists, to live the way that they want to live.51 From the perspective of value pluralism, the most that a political community can ask of its members is toleration. However, this type of political toleration should not be confused with current (mis)usages of the term.52 Political toleration, first and foremost, involves putting up with values and versions of the good life of which we do not approve, as long as such values do not violate the minimal moral content common to any version of a good life. Thus, strictly speaking, toleration has a threepronged definition. First, the tolerant actor has an objection, moral or nonmoral, to a specific action, belief, character, disposition, etc. Second, the tolerant actor has, at the very least, the power to interfere with the objectionable action, belief, etc. Third, the tolerant actor, for moral or nonmoral reasons, chooses not to interfere with the objectionable action,

51 As mentioned in Sect. 2, the most salient distinction between what I have called welfare liberal pluralists and what I have called classical liberal pluralists is the absolute priority that welfare pluralists place on personal autonomy. This emphasis on autonomy manifests itself in a much narrower range of toleration on the part of welfare pluralists, who are willing to tolerate only egalitarians and liberals. This sort of pluralism reminds one of the lines from the Blues Brothers movie in which Elwood asks Claire, the bartender at Bob’s Country Bunker, “What kind of music do you usually have here?” and Claire responds, “Oh, we got both kinds. We got country and western.” Or, as Bernard Williams observes, “The case of toleration is…a central one for distinguishing between a strongly moralized conception of liberalism as based on ideals of individual autonomy, and a more skeptical, historically alert, politically direct conception of it as the best hope for humanly acceptable legitimate government under modern conditions.” Bernard Williams, “Toleration, a Political or Moral Question?” In the Beginning Was the Deed: Realism and Moralism in Political Argument, Geoffrey Hawthorn, ed. (Princeton: Princeton University Press, 2005) 138. For narrow treatments of toleration by welfare pluralists, see Crowder, Liberalism and Value Pluralism, 236–246; and Raz, Morality of Freedom, 400–429. 52 The most common misuse of the term toleration these days is the attempt conflate toleration with approbation and/or celebration. See, among others, Michael Walzer, On Toleration (New Haven, CT: Yale University Press, 1997); and Anna Elisabetta Galeotti, Tolerance as Recognition (Cambridge: Cambridge University Press, 2002).

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belief, etc.53 For example, a mother says to her child, “I will tolerate your climbing on the roof;” a man says to his visiting adult brother, “I will tolerate you smoking in the living room;” a women says to her boyfriend, “I will tolerate you sitting around, getting drunk, and listening to Tito Puente records all day;” a wife says to a husband, “I will tolerate your horrible taste in literature, art, and/or politics.”) These are actually not likely to be cases in which toleration is exhibited, but they do exemplify the notion that toleration does not have to be highly moralized. Neither the objection has to be moral (in the examples above, the mother objects out of concern for her child, which is moral, the brother objects because he doesn’t like the smell, which isn’t moral, the girlfriend objects because of her distaste for her boyfriend’s laziness, which partakes of both moral and nonmoral objection, and the wife objects for aesthetic reasons, which are nonmoral) nor does the reason for not interfering (the mother’s reason could be either that she enjoys her child’s enjoyment or that she is lazy or that she has made a prudential calculation that forbidding something makes it more attractive, none of which are necessarily moral, and the other examples also exhibit this nonmoral character).54 This sort of toleration, which Balint calls forbearance tolerance, is central 53 This three-pronged definition of toleration is common among moral and social

philosophers. Peter Balint writes that “toleration must always have three basic components: an objection, the power to negatively act on this objection, and intentionally not acting in this way.” Balint, Respecting Toleration, 3. For other examples of the three-pronged definition, see Raz, The Morality of Freedom, 401–402; John Horton, “Toleration as a Virtue,” Toleration: An Elusive Virtue, David Heyd, ed. (Princeton: Princeton University Press, 1996) 28; Susan Mendus, “My Brother’s Keeper: The Politics of Intolerance,” The Politics of Toleration in Modern Life, Susan Mendus, ed. (Durham, NC: Duke University Press, 2000) 3; and John Horton and Peter Nicholson, “Philosophy and the Practice of Toleration,” Toleration: Philosophy and Practice, John Horton and Peter Nicholson, eds. (Aldershot, UK: Avebury/Ashgate Publishing, 1992) 2. 54 The conception of toleration offered here is descriptive, not moral or moralized. Moralized versions of toleration entail that the objection of the tolerating person must be not only a moral one but a morally correct moral one and/or that the reasons for refusing to act also be not only moral but morally correct. So, according to these conceptions of toleration, if a person objects to something for immoral reasons (e.g. when racists, sexists, communists, etc. object to something) that person cannot be considered tolerant because the objection itself (e.g. to other races, to other sexes, to non-communists) is immoral. This also means that refusing to act for prudential reasons ought not to be considered tolerant because prudential considerations are not moral ones. For moralized conceptions of toleration, see John Horton, “Toleration as a Virtue,” 28–43; and Peter Nicholson, “Toleration as a Moral Ideal,” Aspects of Toleration, John Horton and Susan Mendus, eds. (London: Methuen, 1985) 158–173. For a critique of moralized conceptions of toleration,

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to the success of the political community as an area of peaceful coexistence, and it is chiefly to be found in the relationship between citizen and citizens, and in the sort of demands that citizens make on government.55 This sort of noninterference in the activities of others will inevitably be culturally and morally specific, and, thus, the circumference of tolerated values will vary significantly from political community to political community. Prioritizing noninterference has the virtues of limiting the scope of certain types of rights claims (especially rights claims which require actions on the part of others), encouraging compromise between concerned individuals and groups, and providing for flexibility in the resolution of moral and legal conflicts. Commitment to this minimum or modus vivendi political morality does not necessarily impinge upon the individual’s or group’s capacity to demand a much thicker kind of moral ideal of herself or itself. It merely implies that there is a distinction between what is minimally acceptable to all, or most, as a means to get along, and what individuals and groups believe to be necessary for the fulfillment of their own ultimate human good. It does place limits on what sort of political demands can be made by individuals and groups on behalf of their respective values and beliefs about the good life. For example, theocrats, racial/ethnic essentialists, and proponents of alternative sexuality are free to insist on being tolerated, but cannot expect that such toleration extends to the approbation of their actions or the acceptance of the truth of their particular narratives. Thus, for example, orthodox Christians and Muslims ought to tolerate homosexuals, and this means that such groups should not try to prohibit homosexual acts. Homosexuals, however, also ought to tolerate orthodox Christians and Muslims, and this means that they should not engage in activities which require Christians and Muslims to participate in a supportive and or approving manner. Neither group ought to expect that the other be forced to respect their beliefs or actions, or approve of them. This misconception of toleration as approbation or respect approximates the totalitarian notion that indifference or toleration is as much of a crime as outright opposition, and leads those who would otherwise be indifferent or tolerant to think that outright opposition or see Mary Warnock, “The Limits of Toleration,” On Toleration, Susan Mendus and David Edwards, eds. (Oxford: Clarendon Press, 1987) 124–139. 55 For the distinction between tolerance as forbearance, which involves an initial objection to an action, belief, etc., and tolerance as indifference, which does not involve such an objection, see Balint, Respecting Toleration, 5–22.

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intolerance is the only acceptable option when confronted with values of which they disapprove.56 For example, grievance group politics tends to exacerbate social problems by defining them in completely Manichean terms. If observing that disproportionate black crime rates play a central role in the problems that black Americans have with the police, or if opposition to the legalization of homosexual marriage or to the recognition of transsexuality as completely benign are considered beyond the pale, the area inside the pale has become very narrow indeed. Indeed, one of the interesting distinctions to be made concerning the value of toleration is that between toleration and indifference. It is common English usage these days to conflate these two attitudes or dispositions, as when one says that “Finland is a tolerant country,” or that the Dude in The Big Lebowski is a tolerant fellow. Here, toleration suggests that Finland and the Dude are indifferent to a great many things and, thus, quite permissive in their attitude toward the actions and beliefs of others. When speaking of the relationship between citizens, the most that can be asked is that they tolerate the eccentricities of their fellow citizens and refrain from asking government to interfere. When speaking of the relationship between government and its citizens in a liberal pluralist state, the expectation is that the government remain neutral and impartial between minimally acceptable forms of the good life for human beings. The government cannot be absolutely neutral or impartial, of course. It should favor its own citizens over the citizens of other states, and, thus be partial there. It also must be intolerant of violence or threats of violence against persons and their property. For the most part, however, government is not tolerant of its citizens, in the sense of forbearing to act on an objection, but indifferent to its citizens because of its commitment to defend their negative liberty to live their lives the way they want. Since the government in a liberal pluralist state is neutral and impartial about the citizens’ choices about living their lives, it obviously should not engage in nepotism, sex discrimination, or race discrimination, and, thus, state-sanctioned affirmative action or “diversity” hiring of any sort should be prohibited. However, as mentioned in chapter four, a value pluralist would accept that preferring one’s family members; or one’s tribe, ethnicity, race, nation, or country; or one’s favorite singer, band, orchestra, etc., are sometimes reasonable in the decisions one makes about 56 For a critique of the notion that toleration entails respect, see Balint, Respecting Toleration, 99–120.

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how to live one’s private life. Of course, it is not necessarily always reasonable, nor is it necessarily the most reasonable way to live one’s life. It is also sometimes reasonable to favor other races, ethnicities, tribes, nations, or countries than one’s own. However, it is not reasonable to ask government to favor races, ethnicities, or tribes. So, government toleration of private individual or group preferences based on family relations, sex, or race in private associations (e.g., hiring family members in the family businesses, having single-sex clubs like fraternities and sororities, or belonging to organizations which promote a particular race or ethnicity like Black Lives Matter, La Raza, or the National Association for the Advancement of White People) is a reasonable policy insofar as these are private associations. The toleration of even overtly racist or sexist groups (e.g., the Black Panthers or the Ku Klux Klan) is acceptable as well (and this toleration would include a moral objection, and, thus, be an example of government forbearance toleration), though they need not be tolerated if they are inciting to violence or if they are advocating changes to the law designed to secure special privileges for their favored race or sex. Normally, however, a liberal pluralist government will be neutral and impartial to its citizens, except insofar as it favors them over foreigners or noncitizens, and in prohibiting actions which harm persons and property. As Andrew Jason Cohen writes, “all behaviors are to be equally tolerated by the state so long as no harm is done to others.”57 Strictly speaking, then, forbearance tolerance is a virtue of citizens in a pluralist state, while government is understood to be neutral because of its indifference toward citizens’ particular pursuits. Regarding toleration as a virtue makes sense because it is both an internal good to human lives (i.e., it involves learning what is important and what is not) and it is an external good in that it conduces to the success of peaceful coexistence which is the non-substantive purpose of the state/political community. The question of toleration does raise one of the paradoxes of value pluralism, which is that the recognition of the truth of value pluralism undermines belief in any sort of monistic moral system. If belief in such systems provides certain kinds of human goods or values that a recognition of pluralism would undermine, should acknowledgment of the truth of value pluralism be encouraged? Most people would say that knowing 57 Andrew Jason Cohen, “Contemporary Liberalism and Toleration,” The Cambridge Companion to Liberalism, Steven Wall, ed. (Cambridge: Cambridge University Press, 2015) 201.

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the truth is better than living according to some system of values that is ultimately false. This is generally true, but not necessarily the case, however. The claims of value pluralism are primarily meta-ethical. They are second-order arguments about the general character of values and morality, and suggest that values are inherently contradictory and/or conflictual, that they often make incompatible demands on individuals, and that moral systems are plural and not reducible to a single correct one. First-order values reflect answers to practical questions about what is valued and what is valuable, what is moral, and what a version of the good life is.58 One doesn’t have to have a correct understanding of secondorder moral truths in order to have a decent set of answers to questions about the good life. Even if the moral pluralist must reject the ultimate and exclusive truth of Islam, Christianity, Marxism, Bokononism, etc., she still must allow for the possibility that the individual Muslim, Christian, Marxist, or Bokononist can be a good human being, and for the possibility that any of these monistic moralities offers substantive values which can fulfill human needs. In the same way, one doesn’t need to have a correct philosophy of carpentering to be a good carpenter or a correct philosophy of humor to be a good comedian. Holding a monistic view of morality doesn’t preclude adequate participation in the public life of a pluralist society. Some pluralists, like Hampshire, have suggested that those who reject pluralism are a danger to other citizens’ pursuit of their own version of the good life and should be reeducated or banned.59 This obviously runs counter to the pluralist notion that there are many disparate and acceptable human values, and the achievement of some of these might depend upon a belief in a monistic account of morality. As long as monistic moralists accept the distinction between public/political morality and their own more comprehensive private morality and also accept the content of the conditions of peaceful coexistence, then the content of their private version of the good life is their own business. Indeed, if monistic moralists

58 David McCabe makes a similar argument about the connection between first order and second order accounts of morality. McCabe, Modus Vivendi Liberalism, 111–115. 59 Hampshire writes that “[T]he primary enemy from my standpoint is monotheism, and after that moral universalism.” One might hypothesize a monotheistic religion which doesn’t have any creedal aspects, and, as such, would not constitute a monistic morality. There could be a ‘God who left no instructions’, after all. See Hampshire, Justice is Conflict, 35, 52.

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recognize the existence of plural monisms in a particular political community, they might also recognize that the nomocratic liberal regime offers a zone in which a variety of monistic moralities might have the chance to flourish alongside each other.60

4

Conclusion

I have argued that there is no primary pre-political moral value and that autonomy, understood as rational self-direction, is not a necessary condition of any version of the good life for human beings. Instead, I have maintained that negative liberty is the primary political value which distinguishes a value pluralist approach to political life from other monistic approaches. For the classical liberal pluralist, government is responsible for supporting conditions in which individuals and groups are free to pursue their own versions of the good life, as long as these don’t violate the minimum conditions of morality. Since no single person’s or single group’s hierarchy or scheme of valuation can be rationally understood to outweigh all other schemes, government should not be involved in imposing such a scheme or set of schemes. Individuals should be free to make their own decisions and have such decisions tolerated by others. In this chapter, I have not argued that any and every reasonable person would prefer a classical liberal pluralist state to any other sort. I have only asserted that value pluralists would reasonably conclude that negative liberty is the political priority of the pluralist state. However, monists living in pluralist communities (i.e., in situations in which pluralists are a majority or in situations where no monistic group is a majority) ought to accept it, as well, as it guarantees them toleration of their living their lives without external interference. This sort of toleration is most appropriately manifested in the public sphere by a regime of negative liberty embodied in the rule of law. Without the rule of law, the regime becomes an arena in which various monisms compete for domination or seek to compromise by dividing

60 One answer to Alasdair MacIntyre’s critique of modern liberal societies is that it

is only within such societies (especially those which recognize the importance of value pluralism) that his alternative intentional communities can hope to flourish or even exist without taking over the whole state apparatus. For his brief appeal to create a new monasticism, see Alasdair MacIntyre, After Virtue, 3rd Edition (Notre Dame, IN: Notre Dame University Press, 2007) 256–263.

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up the spoils taken from others. In the next chapter, I offer a specific conception of the rule of law as an institution which best protects negative liberty, while also offering its own sort of freedom, even where the law is not silent.

CHAPTER 7

Negative Liberty, the Rule of Law, and Nomocratic Pluralism

Abstract This chapter completes the treatment of the implications of value pluralism for political theory and practice. It offers a specification of liberal pluralism which deals with the institutionalization of the protection of negative liberty by law, and refers to this further specification of liberal pluralism as nomocratic pluralism. In a nomocratic pluralist state, the institutional manifestation of the protection of negative liberty is a regime governed by the rule of law. I develop the conception of the rule of law in connection with the specific type of political community that would be acceptable to self-conscious value pluralists. As suggested in Chapters 4 and 5, pluralists would reject any notion that the political community ought to be understood as a collective and cooperative arrangement in pursuit of a shared substantive purpose or set of purposes. Instead, the political community is best understood as a means of peaceful coexistence among people with their own lives to live. The role of the government is to maintain the articles of peaceful coexistence, which are noninstrumental rules which do not command specific performances but, instead, condition the self-chosen actions of individual citizens. I call this regime a nomocratic pluralist state under the rule of law. Keywords Nomocratic pluralism · Negative liberty · Liberty under the law · The rule of law · Michael Oakeshott · Lon Fuller · Friedrich Hayek · Teleocratic organizations

© The Author(s) 2021 K. B. McIntyre, Nomocratic Pluralism, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-53390-8_7

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In Chapter 6, I claimed that self-conscious value pluralists would reasonably conclude that the protection and promotion of negative liberty ought to be considered as the rebuttable first priority of an authentically pluralist political community. In this chapter, I offer a specification of liberal pluralism which deals with the institutionalization of the protection of negative liberty by law. I refer to this further specification of liberal pluralism as nomocratic pluralism. In a nomocratic pluralist state, the institutional manifestation of the protection of negative liberty is a regime governed by the rule of law. Of course, the term “the rule of law” has been understood in a variety of ways. Indeed, Martin Loughlin suggests that “the ubiquity of the expression ‘the rule of law’ is matched only by the multiplicity of its meanings.”1 However, most legal philosophers use the term “rule of law” to refer to governments that are obliged by the laws they pass and that pass laws according to set procedures defined by other laws.2 This thin conception of the rule of law covers all sorts of regimes and all sorts of laws passed by such regimes. I will use the term in a more expanded sense specific to the type of political community that would be acceptable to self-conscious value pluralists. As suggested in Chapters 5 and 6, pluralists would reject any notion that the political community ought to be understood as a collective and cooperative arrangement in pursuit of a shared substantive purpose or set of purposes. Instead, the political community is best understood as a means of peaceful coexistence among people with their own lives to live. The role of the 1 In this context, Loughlin quotes Judith Shklar, who writes that “it would not be difficult to show that the phrase ‘the Rule of Law’ has become meaningless thanks to ideological abuse and general over-use.” In this, the expression ‘the rule of law’ has suffered the same emptying out of meaning that the terms ‘fascism,’ ‘racism,’ and ‘democracy’ have suffered. Martin Loughlin, Foundations of Public Law (Oxford: Oxford University, 2010) 313 (Shklar quoted on 313, note 2). 2 For example, Andrew David Irvine writes that “central to the idea of the rule of law is the requirement that even government must be bound by law.” In a similar fashion, Jeremy Waldron claims that the rule of law means that “people in positions of authority should exercise their power within a constraining framework of public norms, rather than on the basis of their own preferences, their own ideology, or their own individual sense of right and wrong.” And Brian Tamanaha notes that “The rule of law means that government officials and citizens are bound by and abide by the law.” Andrew David Irvine, “Origins of the Rule of Law,” Reclaiming Liberalism, David F. Hardwick and Leslie Marsh, eds. (New York: Palgrave Macmillan, 2020) 179; Jeremy Waldron, “The Concept and the Rule of Law,” Georgia Law Review 42 (2008) 6; and Brian Tamanaha, “The History and Elements of the Rule of Law,” Singapore Journal of Legal Studies (2012) 233.

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government is to maintain the articles of peaceful coexistence, which are noninstrumental rules which do not command specific performances but, instead, condition the self-chosen actions of individual citizens. I call this regime a nomocratic pluralist state under the rule of law. Thus, the type of law connected with this sort of regime is limited to laws which are noninstrumental and constitute the conditions in which individuals pursue their own purposes. The institutional instantiation of the rule of law provides an arena of peaceful (more or less) coexistence (more or less) for people who do not share a single substantive purpose and who do not necessarily (but may) share beliefs about or commitments to a single version of what makes for a good human life. This conception of the state is the most reasonable way to address both the empirical reality of pluralism, and it is also what self-conscious value pluralists would recognize as the character of a pluralist state. Finally, the nomocratic pluralist state preserves the negative liberty of its citizens, while also incorporating a further type of liberty, which is liberty under noninstrumental rules.

1

Rules, Laws, and the Rule of Law

The rule of law as used in this chapter means, not merely ruling by passing any sort of law at all, but ruling by passing laws of a certain type, i.e., general rules which condition but do not prescribe the self-chosen actions of the sort of intelligent human beings described thus far in the book.3 Thus, the term “the rule of law” is somewhat pleonastic in that it means the rule of rules, specifically noninstrumental rules. Other writers, most especially legal positivists, have not insisted on the unique character of law appropriate to the expression the rule of law. Indeed, Friedrich Hayek’s primary critique of legal positivism is that the positivists do not accept the distinction between instrumental rules or decrees or policies passed in the pursuit of specific substantive managerial purposes like waging war, formulating a budget, or providing a safety net for needy citizens, and noninstrumental rules, like criminal statutes, the rules of the road, civil

3 Hayek notes that “the rule of law is…not a rule of the law, but a rule concerning

what the law ought to be, a meta-legal doctrine.” Friedrich A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960) 206. For an excellent historical account of the rule of law as elaborated in this chapter, see Nadia Nedzel and Nicholas Capaldi, The Anglo-American Conception of the Rule of Law (New York: Palgrave Macmillan, 2019).

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laws, and laws which empower citizens to act in certain ways (i.e., estate laws, marriage laws, etc.), which constitute the conditions in which citizens can pursue their own plans and purposes.4 In this section, I explore the meaning of the rule of law by examining the specific content of the concept when connected with the understanding of the state as a nomocratic liberal pluralist political community. In so doing, I will be relying heavily on the work of Michael Oakeshott, Friedrich Hayek, and Lon Fuller.5 The conception of the rule of law developed in this chapter is an ideal type, not a piece of descriptive sociology, but also not an aspirational ideal.6 Instead, the idea of the rule of law involves an account of the rationality of law understood in terms of its place in a political community which is understood, not as a purposive, collective, and cooperative enterprise, but as a contingent non-purposive arena of peaceful coexistence. The character of law in such a nomocratic state contrasts with

4 Hayek claims that “positivism has…tried to obliterate the distinction between rules of

just conduct and rules of organization, and has insisted that all that is currently termed law is of the same character.” Friedrich Hayek, Law, Legislation, and Liberty: Volume 2, The Mirage of Social Justice (Chicago: University of Chicago, 1976) 46–47. 5 Oakeshott is the primary influence, in part because Hayek’s defense of the rule of law is often couched in consequentialist terms, while Fuller is less explicit in connecting the rule of law with a specific regime type, as I will be doing here. The novelty of my account, such as it is, lies in its connection of the rule of law in Oakeshott’s, Hayek’s, and Fuller’s sense of the term with an explicit commitment to value pluralism. Oakeshott notes that “the rule of law bakes no bread,” and, while Hayek would agree, he would also claim that it does facilitate those who do bake bread and want to sell it. For example, Hayek claims that “a condition of liberty in which all are allowed to use their knowledge for their purposes, restrained only by rules of just conduct of universal application, is likely to produce for them the best conditions for achieving their aims.” See Michael Oakeshott, “The Rule of Law,” On History and Other Essays (Indianapolis, IN: Liberty Fund, 1999) 178; Michael Oakeshott, On Human Conduct (Oxford: Clarendon Press, 1975); Friedrich A. Hayek, The Constitution of Liberty; Friedrich Hayek, Law, Legislation, and Liberty: Volume 1, Rules and Order (Chicago: University of Chicago Press, 1973) 55; Lon L. Fuller, The Morality of Law, Revised Edition (New Haven, CT: Yale University Press, 1969); and Lon L. Fuller, The Principles of Social Order: Selected Essays of Lon L. Fuller, Kenneth I. Winston, ed. (Durham, NC: Duke University Press, 1981). 6 H.L.A. Hart describes his work The Concept of Law “an essay in descriptive sociology.” H.L.A. Hart, The Concept of Law, Second Edition (Oxford: Oxford University Press, 1994) vi. Oakeshott writes that an ideal type is “not ideal in the sense of being a wished-for perfect condition of things but in being abstracted from the contingencies and ambiguities of actual goings-on in the world.” Oakeshott, On Human Conduct, 109.

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the character of law or rules understood in teleocratic or purposive institutions, organizations, and associations.7 There is what Oakeshott calls a modal distinction between, on the one hand, a relationship between human beings which is constituted by their recognition of a common set of non-instrumental rules, and, on the other hand, a relationship between human beings which is constituted by their agreement on a set of specific and substantive purposes.8 As Oakeshott suggests, a modally discrete form of human relationship or association “is distinct from relationships contrary to itself, [but] it does not exclude persons who enjoy those relationships.”9 That is to say, there are different sorts of human relationships and, while some exclude others, some merely reflect different perspectives on human actions. There are relationships in which a person desires something and trades something with another person for that thing. These are practical and transactional relationships, and they work or do not work because of some confluence of power and desire. For example, a man wants to get from DFW airport to Stan’s Blue Note, and a taxi driver is looking for a fare; a woman fancies a new hairstyle and a beautician has an open chair; or a person has a hankering for a Big Mac and sees an open and fully staffed McDonald’s with a drive-through window. In these transactional relations, individuals have things that others want (e.g., money, skill, or attractive possessions) and are willing to trade what they have in order to get what they want. There are, of course, general rules (i.e., the laws which constitute a market economy) which condition and make possible such transactions, and I will return to those when discussing the rule of law itself. However, there are also quasi-instrumental rules

7 Hayek defines a teleocracy as “an end-connected tribal society” and a nomocracy as a “rule-connected open society.” Oakeshott writes that, “by teleocracy, I mean the proper business of governing understood as the organization of the energies and activities of its subjects, and of the resources of its territory, for the achievement of a single premeditated end,” while “nomocracy means…government understood as the rule of its subjects by means of law. Hayek, Law, Legislation, and Liberty: Volume 2, 38; Michael Oakeshott, Lectures in the History of Political Thought (Exeter, UK: Imprint Academic, 2006) 471, 483. 8 Other legal philosophers like John Gardner also describe legal relations as modally distinct from other types of human relations. John Gardner, “The Supposed Formality of the Rule of Law,” Law as a Leap of Faith: Essays on Law in General (Oxford: Oxford University Press, 2012) 207. 9 Oakeshott, On Human Conduct, 108.

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connected with such transactions which are meant to make the transactions more efficient. For example, there are rules, or at least, customs associated with hailing a taxi at an airport (e.g., one must wait in line), making an appointment with a stylist (e.g., appointments trump “first come, first served”), or even using a drive-through window at a fast food restaurant (e.g., one has to be in an automobile). These rules offer an intimation of the character of the kind of noninstrumental rules characteristic of the rule of law, but they are subservient to the purposes of the agents involved in the transaction and can reasonably be ignored if they do not serve the interests of such agents. Such transactional relationships are often, but not necessarily, quite fleeting. So, though it is not often the case that a person develops a deep loyalty to the employees of a fast food restaurant, it is quite normal for women and men to hold the relationship to their hairdresser or barber to be more durable than its mere transactional quality might suggest. Thus, transactional relationships exist to satisfy the desires of the human beings involved. They are purposive in that they seek specific satisfactions, and, thus, often end when that purpose is achieved. Connected with such transactional relationships are more durable forms of practical association. These are relationships in which humans associate with each other because of their shared desires and purposes. This sort of relationship, which Oakeshott calls an enterprise association and Hayek refers to as an organization, is defined by the purpose or purposes of the associates.10 These sorts of more durable and more stable relationships, along with short-term transactional relationships, comprise what Hegel calls civil society and what Tocqueville calls civil or public associations, and these are manifestations of the freedom of individual citizens to make and keep commitments and obligations, and to pursue their own particular conception of a decent human life. Organizations as diverse as the 2nd Baptist Church, the local bowling league, the Parents/Teachers Association, the American Philosophical Association, community-supported agriculture groups or the local Farmers’ Market, a balloon factory, the National Rifle Association, a college fraternity, etc.

10 Oakeshott writes that enterprise associations are relations “in terms of the pursuit of some common purpose, some substantive condition of things to be jointly procured, or some common interest to be continuously satisfied.” Oakeshott, On Human Conduct, 114. For Hayek’s discussion of organization, see Friedrich Hayek, Law, Legislation, and Liberty: Volume 1, 35–54.

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are defined by the specific purposes that they pursue and by the members that they attract, who are committed jointly to the common pursuit of the purpose. Such permanent or semipermanent enterprise or teleocratic organizations often have sets of rules, and, thus, such relationships can be considered in terms of the types of rules associated with them. However, these rules neither constitute nor define the association, but are strictly instrumental to the common purpose and can be discarded if seen to be harmful or irrelevant to that purpose. For example, the rules regulating police procedure are instrumental to the purposes of a police department, which are commonly regarded to be preventing crime from taking place and capturing criminals when it does take place. Given that these rules are instrumental, it makes perfect sense to judge them based on their relevant consequences. Thus, one of the obvious attractions of, for example, the Dirty Harry movies is that Harry Callahan breaks rules which are preventing the police from doing their job properly. Since the rules are almost purely instrumental, a person who recognizes that the rules are harming rather than helping the cause is completely justified in ignoring them. Indeed, the instrumental rules of teleocratic organizations are more akin to maxims of success than to the type of law associated with the rule of law. A more appropriate distinction might be between the concept of the rule of law which is appropriate to a nomocratic pluralist state and the rule of policy which is appropriate to a teleocratic institution devoted to the achievement of specific substantive purposes. There is no limit to the variety or number of these associations which might exist or which an individual might join, and, because of their ubiquity, the nature of the political community is often assumed to be that of a teleocratic organization. However, there is an additional characteristic of a teleocratic organization which makes it an unconvincing model for a political community, especially for self-conscious value pluralists. Such organizations are, by implication, voluntary in nature. Individual human beings choose to join in order to pursue the common purpose knowing that they can revoke their membership. This characteristic is essential, if freedom of association is to be honored in a community. The voluntary character of teleocratic organizations is central to the moral and practical self-understanding of the value pluralist, as she rejects the notion that there is a single purpose or set of purposes that all humans would rationally agree are the purpose or purposes that all human beings ought to be pursuing. Thus, a political community cannot be understood as a teleocratic organization because there are no common substantive purposes

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in the nomocratic pluralist state to which everyone would agree. Thus, conceiving of law as a set of rules, commands, edicts, or policies designed to achieve substantive purposes is contrary to understanding the political community as nonpurposive in this way. Indeed, as Oakeshott notes, “a compulsory enterprise association is a self-contradiction” because it denies the freedom of choice which partially constitutes the enterprise itself as a moral human relationship.11 So, one modally distinct type of human relationship consists of shortterm substantive transactions and longer-term substantive plans, purposes, or goals, and the instrumental rules, maxims, policies, etc., connected with them. If, as I have suggested, the rule of law is not connected directly with transactional relationships, then what other modal type of relationship is there? Here, Oakeshott, Hayek, and Fuller suggest that there is a form of human relationship in terms of noninstrumental rules in which said rules constitute the manner and not the direction of the association.12 A modally distinct type of human relationship of this sort is, at least, intimated in some of the customs associated with transactional relationships. However, it is confused there with questions of efficacy, efficiency, and success, and these are all characteristic of instrumental rules or maxims. There are other similar situations in which individuals pursue purposes subject to rules which are not instrumental to the success of the projects or purposes, but, instead, condition the choices of those engaging in transactional relationships. For example, participants in games are related to each other both as competitors attempting to win the contest, and also as individuals who acknowledge the rules of the game itself. There are, of course, instrumental maxims associated with games (e.g., in chess, one ought to develop one’s knights and bishops early in the game; in baseball, one ought not to swing at the first pitch if the previous batter made an out swinging at the first pitch; in football, one ought to delay going for two as long as feasibly possible), but these are not the rules of the games themselves and a player or coach is not penalized for not following the various maxims of success, other than perhaps getting benched or fired. Instead of such maxims, these games are constituted by noninstrumental rules which do not prescribe particular actions. Such rules do not

11 Oakeshott, On Human Conduct, 119. 12 Oakeshott, On Human Conduct, 108–184; Hayek, Law, Legislation, and Liberty:

Volume 1, 94–123; and Fuller, The Morality of Law, 152–186.

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tell us what to do, but how to do it. If one is going to develop one’s knights and bishops early in the game, there are conditions under which one can pursue this strategy, namely the rules conditioning the movement of those and other pieces on the board. Likewise, if one ought to take the first pitch under certain circumstance, the rules outlining what counts as a ball and a strike are still conditioning factors in making such a decision. And, the rules of scoring provide the conditions under which football coaches decide to go for two points. That is to say, in almost any human action, there will be two different sorts of consideration at play. On the one hand, there are considerations related to pursuing successfully one’s own plans and projects, and, on the other, there are considerations of the rules of the activity itself. So, for example, regarding games, one cannot solely play according to the rules. One has to make an actual substantive move. Likewise, speakers of the same language are related in terms of subscription to the rules of the language itself. Here again, there are instrumental maxims which are advisory and linked to success, and one finds them in works exploring the practical side of rhetorical persuasion or in books like How to Win Friends and Influence Enemies. Nonetheless, these are not collections of the rules of a language, but maxims on how to use the language to succeed in whatever one is seeking. However, there are also noninstrumental rules, which are normally called the grammar of a language, which do not prescribe specific words, combination of words, or sentences. Like the rules of games, the rules of language do not tell us what to say but how to say it. And, like participating in a game, in speaking a language, one cannot speak solely grammatically. One has to say something. Participants in market exchanges are in similar situations. There are instrumental maxims supposed to aid in the success of one’s transactions (e.g., “buy low, sell high,” caveat emptor, etc.), but these are not the rules of the market. The rules of the market, like the rules of a game or a language, are noninstrumental rules which constitute the conditions under which transactions take place. They do not tell us what to buy or sell but how to do it, and one cannot simply abide by the market rules, one has to buy or sell something. Such market rules are often different than the rules of a language or the rules of a game insofar as they are often actual laws. And such laws, considered under the concept of the rule of law, are noninstrumental rules which condition but do not determine the choices, plans, and projects of individuals. Laws understood in this way

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do not tell individuals what to do nor do they specify particular actions, but, instead, place conditions on how people do what they choose to do. Oakeshott uses the term “adverbial” qualifications or considerations to describe the character of the conditions created by law.13 So, in his examples, the law does not prohibit killing other human beings, but killing them murderously. Likewise, the law does not prohibit setting fires, but setting fires arsonically. Or, to use a different example, the traffic laws are best understood as further specifications of the adverbial rule to “drive safely,” which is made manifest by the fact that a person can be ticketed for careless or dangerous driving without necessarily having violated one of the more explicit rules of the road. Noninstrumental relationships do not specify performances, and unlike transactional relationships, these kinds of practical relations are selfcomplete in that they are used but can never be used up. The most appropriate conception of the relationship between citizens in a nomocratic pluralist state is as a relationship in terms of noninstrumental rules called laws. This nomocratic state is a rule-articulated association, and the citizens of such a state are related in terms of their recognition of these rules, and, in this necessarily abstract relational persona, they are equal.14 Law is conceived here as a system of authoritative rules which obligate the observation of their conditions. Such laws are general, conditional/adverbial, and they persist through time. They are not addressed to particular individuals, nor do they specify substantive performances, 13 Oakeshott writes that “the expression ‘the rule of law,’ taken precisely, stands for a mode of moral association exclusively in terms of the recognition of known, noninstrumental rules (that is, laws) which impose obligations to subscribe to adverbial conditions in the performance of the self-chosen actions of all who fall within their jurisdiction.” Oakeshott, “The Rule of Law,” 148. 14 Hayek avers that the law consists of “purpose-independent rules which govern the conduct of individuals towards each other, are intended to apply to an unknown number of further instances, and by defining a protected domain of each, enable an order of actions to form itself wherein the individuals can make feasible plans.” Oakeshott characterizes law as “rules which prescribe the common responsibilities…of agents and in terms of which they put aside their characters as enterprisers and put by all that differentiates them from one another and recognize themselves as formal equals.” Fuller writes that “law is not, like management, a matter of directing other persons how to accomplish tasks set by a superior, but is basically a matter of providing the citizenry with a sound and stable framework for their interactions with one another, the role of government being that of standing as a guardian of the integrity of this system.” Hayek, Law, Legislation, and Liberty: Volume 1, 85–86; Oakeshott, On Human Conduct, 128; and Fuller, The Morality of Law, 210.

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and they persist whether acknowledged or obeyed. For example, the laws dealing with probate apply not to identifiable persons or even a specific class of citizen, but refer to all of those within a particular jurisdiction. Such laws do not force people to write wills nor do they specify the content of any particular will, but they do set forth the conditions under which wills are legitimate or authoritative. These laws are not exhausted when a person writes a will, but continue to condition the production of such documents in perpetuity, or, until they are changed in an authorized manner. Contrast the notion of law exhibited in probate law with commands or policies, which identify particular individuals, specify performances, and generally cease to have force after they are completed or fail to be completed.15 A lieutenant who orders his platoon to charge an enemy gun emplacement is issuing an authorized command to a specific group of individuals to engage in a substantive activity. Whether the platoon succeeds or not, the command is exhausted after the action is completed. The action can be repeated, but it requires an additional command. In a similar fashion, maintaining a stable currency, eliminating poverty or unemployment, taming or punishing the Russians or Chinese, or “Carthago delenda est ” would all be examples of substantive policies, and not authentic law under this conception of the rule of law. As mentioned above, the rule of law as considered here is an ideal type, and constitutes the normal form of ruling for a nomocratic pluralist regime. However, it is obvious that there are situations in which the government of such a regime acts as if it were the manager of an enterprise and not the guardian of the noninstrumental rules of coexistence. For example, when the survival of the community itself is endangered, which can result from invading armies, invading foreign pandemics, rioting or sedition, or economic catastrophes, the government transforms itself into the manager of a unified, concerted, and collective enterprise to ensure its survival. These occasions, of course, ought to be understood as exceptions to be regretted and not as novel avenues for permanent government involvement. Further, the maintenance of government itself (e.g., salaries, secretaries, offices, etc.); the maintenance of welfare provisions for the deserving poor; the cost of enforcing the law; the cost of maintaining secure borders; the cost of collection of revenues/taxes, etc., will all be 15 Standing orders are a hybrid, and often appear to have more in common with rules than commands.

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occasions in which the government rules by policy and not by law, but, in a nomocratic pluralist state, these would also be understood to be exceptions to the normal run of practical life. And self-conscious value pluralists would maintain a general suspicion of government activity which appears managerial. A nomocratic pluralist state, then, is to be understood as a rulearticulated association in which the citizens of that state, qua citizens, are related solely in terms of their acknowledgment of the authority of noninstrumental laws. Since there is no common substantive purpose that could possibly unite the diversity of commitments, plans, projects, and values of self-conscious value pluralists, the only possible common commitment would be to the general end-independent rules which constitute the state of peaceful coexistence. The authority of the state, and hence the law, is here conceived of as the right to make rules which oblige others to acknowledge their legitimacy, whether the rules are reasonable or agreeable ones or not. In contrast, power is the capacity to force the compliance of others with whatever decisions are made. An armed robber has power but no authority, while the Pope these days has authority without much power. The relationship between citizens and the government in a nomocratic pluralist state under the rule of law exists in terms of the acknowledgment on the part of the citizens that the government has the authority to rule and that the laws it passes are obligatory for the citizens. This recognition on the part of the citizens is not the result of approval or disapproval of the law, or of the possible substantive benefits of the law, but comes from the acknowledgment of law as an authoritative and obligatory system of rules. The authority that the nomocratic state possesses then derives not from an agreement about a common substantive purpose to be pursued by all citizens, but from the continuous assent of the citizens to be governed by a set of noninstrumental rules common to all in the pursuit of their own substantive purposes. Regarding the form that the authority takes, what is important is not who governs but how they govern. If the authority is governing according to the rule of law as understood here, then whether office holders are elected by the citizenry, selected according to expertise or connoisseurship, inherit the office, or are the winners of lottery drawings is not that important. And, since parties in democracies run campaigns based largely on promises to take away the property and liberty of those that don’t support them and

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give it to those who do, democracy remains a strange bedfellow with nomocratic pluralism.16 The laws constituting the nomocratic regime can be considered from a variety of points of view. However, in terms of the authority of the laws, consideration is limited to questions concerning the authenticity or validity of the law, and such questions are limited to the source and the form of the law. Questions about the reasonableness, goodness, or justice of particular laws will be addressed in the third section of this chapter on politics and institutions in a nomocratic pluralist state. For most legal positivists, the sole question to be asked concerning the authenticity or validity of a law is whether the law was passed according to the accepted procedures.17 As Hart famously argues, there is a rule of recognition which allows citizens, or, at least, government officials to know what counts as a valid law. Such rules of recognition consist of laws themselves, and, thus, there are primary laws which condition the choices of citizens and secondary laws which constitute the procedures through which valid law is recognized, altered, and enforced.18 Procedures constituting the offices of legislation, adjudication, and ruling are specified in the law, and the authority of the actions taken and laws promulgated by holders of these offices derive from their subscription to these procedures. The authority of the civil association lies in the recognition of it as a system of

16 For a discussion of the tension between liberty and democracy, see, among others, J.L. Talmon, The Origins of Totalitarian Democracy (New York: Praeger, 1960); Isaiah Berlin, “Two Concepts of Liberty,” Liberty, Henry Hardy, ed. (Oxford: Oxford University Press, 2002) 166–217. 17 John Gardner claims that the legal positivist position is that, “in any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits.” John Gardner, “Legal Positivism: 5 ½ Myths,” Law as a Leap of Faith: Essays on Law in General (Oxford: Oxford University Press, 2012) 19. 18 Hart discusses the distinction between primary rules, which require human beings to do or abstain from doing certain things, and secondary rules, which “provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations.” Hart is also largely responsible for introducing the concept of ‘rules of recognition’ into legal philosophy. For Hart, a rule of recognition “will specify some feature or features the possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group.” Along with rules of change, rules of adjudication, and primary rules of obligation, the rule of recognition comprises the structure of any legal system. Hart, The Concept of Law, 81, 94.

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self-contained rules.19 Indeed, the rule of law in this instance resembles the Hindu story about the world being carried by four elephants who are carried by a series of large turtles supporting each other all the way down. However, the source or origin of law is only one consideration when thinking about the validity of a law. In a nomocratic regime under the rule of law, authentic law has to be adequate both procedurally (i.e., in terms of its source or origin) and formally. In other words, law has to be composed and passed in an authorized manner and it has to conform to the inherent characteristics of the law.20 Hart calls these the principles of legality and Fuller refers to them as the inner morality of the law. These include, but are not necessarily limited to the following: 1. The law ought to be non-instrumental in the sense discussed above (i.e. the law, as law, cannot be used to achieve specific substantive purposes for specific individuals or groups). 2. All within its jurisdiction should be equally subject to the law and there should be no outlawry. 3. The law ought to consist of rule-like statements, so it must be written in general and impersonal terms. 4. The law must be public. That is, laws cannot be kept secret from those obliged by them. 5. The law should not be retroactive, though it is often the case that court decisions will have some retroactive effects (especially if a court overturns previously settled precedent). But, generally the doctrine of nulla poena sine lege should rule. 6. The law should be as clear as possible, while retaining the generality and impersonality associated with it. 7. The law should be as consistent and non-contradictory as possible, while recognizing that conflicts are inevitable. 19 As Oakeshott notes, “the validity of [a law] is a matter to be decided in terms of the

resources for decisions which [the law] itself provides.” Oakeshott, On Human Conduct, 151. 20 The primary problem with legal positivism as manifested in the writings of Kelsen, Hart, Raz, and Gardner is that they are not concerned with the rule of law as the rule of a particular kind of rule. Instead, their focus is on the questions about the validity or authenticity of law as a matter of authorized origins or sources. That is, I am arguing that, if the law does not have the formal characteristics of legality or the internal morality of law, then you don’t have the rule of law but rule through law or command or policy. Positivists do not distinguish clearly and firmly enough between the sort of law connected with nomocratic regimes and the sort of law connected with teleocratic or managerial regimes.

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8. The law should not demand the impossible (several of the above problems lead to the impossibility of compliance).21

So, there are two different ways that a law can be legitimately considered to be invalid in a nomocratic regime. First, there might be a failure or violation of procedure that renders the law invalid because of its origin or source. For example, in the US, Congress might pass a tax increase which originated in the Senate, or the House might pass a bill and send it directly to the President without having it pass through the Senate. In both cases, the subsequent “laws” would be invalid or inauthentic for purely procedural reasons, whether the content of the “laws” themselves was just, good, and pure, or not.22 Second, a law may fail the authenticity test by not achieving the formal character of the law. So, retroactive laws which punish individuals for actions which were not against the rules at the time of the action, contradictory laws which require the impossible, laws declaring individuals beyond the protection of the law, etc., are not just bad laws, but not really laws at all. Likewise, “laws” which assign substantive rewards to specific individuals or groups (e.g., “laws” discriminating based upon race, ethnicity, or sex) meet neither the noninstrumental requirement nor the equal treatment requirement. So, whether they are called Jim Crow “laws,” affirmative action “laws,” or

21 This list is an amalgamation taken from Fuller, Hayek, Oakeshott, and Hart. It consists of only considerations internal to the specific laws themselves. For example, Oakeshott notes that “there are some considerations that are inherent in the notion, not of a just law, but of law itself. They are conditions which distinguish a legal order and in default of which whatever purports to be a legal order is not what it purports to be: rules not secret or retrospective, no obligations save those imposed by the law, all associates equally and without exception subject to the obligations imposed by the law, no outlawry, and so on.” Oakeshott, “The Rule of Law,” 152–153. See also Hayek, The Constitution of Liberty, 205–210; Hart, The Concept of Law, 207; and Fuller, The Morality of Law, 33–94. Other considerations mentioned by Fuller and Raz, like an independent judiciary and that the government enforce the law as it written, concern the institutional operation and effectiveness of the rule of law, not the internal character of law itself. Joseph Raz, “The Rule of Law and Its Virtue,” The Authority of Law: Essays on Law and Morality, Second Edition (Oxford: Oxford University Press, 2009) 210–229. 22 One argument against the constitutionality of the Affordable Care Act was that it constituted a tax increase and, since the bill was originally introduced in the Senate, it was procedurally invalid. For a brief overview of the argument, see https://www.forbes.com/sites/ilyashapiro/2014/05/12/the-obamacare-taxthat-chief-justice-roberts-invented-is-still-unconstitutional/#22f2cf5522b7.

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diversity promotion “laws,” such “laws” are inherently invalid and inauthentic law. What a government who engages in such actions is doing, of course, is leaving the rule of law behind in favor of the pursuit of policy, and, insofar as this is successful, a nomocratic pluralist regime collapses and becomes a teleocratic or managerial one.

2

Negative Liberty and Liberty Under the Law

In Chapter 4, I claimed that any reasonable theory of practical and moral human action necessarily presupposes the freedom associated with human agency. In Chapter 6, I argued that self-conscious value pluralists would insist that their political communities make a primary but defeasible presumption in favor of negative liberty in their consideration of law or policy. In this section, I suggest that a nomocratic pluralist state under the rule of law respects the freedom of human agency and is capable of protecting the negative liberty of its citizens to make their own choices. I also suggest that there is further sort of liberty under the law available in the nomocratic state that exists because of the specifically noninstrumental character of the rule of law. As discussed in Chapter 6, negative liberty consists in being free from certain kinds of external interference or harm by others. Types of interference or harms include violence to a person or the person’s property which adversely affects a person’s liberty to fulfill obligations and commitments and to pursue plans and projects. For example, murder eliminates the possibility of pursuing one’s purposes, assault harms individuals and creates an atmosphere of limitation, theft of various sorts appropriates resources which can no longer be used by their proper owner, etc. Coercion or threats to harm do much the same thing, only for the purpose of getting someone to act in a certain way that the person herself doesn’t desire. Self-conscious value pluralists would claim that the primary object of government is the protection of negative liberty, including rights to private property and free association rights. As mentioned many times throughout the book, there are multiple versions of a good or decent human life, many various, diverse, and valuable human commitments, purposes, and projects, but there is no single hierarchical scale by which to judge them nor is there a single decision procedure by which all conflicts between values can be resolved. Thus, value pluralists place a high value on maintaining the liberty or freedom necessary to pursue such projects

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and to change one’s mind about them when the occasion calls for it. So, governments should not be dictating which of these commitments, purposes, and projects are the true and only version of the good life (since it would be making a false assertion), and no one ought to be forced to participate in the projects of others. That is, individuals should neither be forced into actual participation in the projects of others nor forced by appropriation of their legitimately held property. The government here is responsible for preserving the conditions under which citizens can pursue their purposes, plans, projects, etc. I have called this form of regime a nomocratic pluralist state and the particular conception of the rule of law associated with it is the institutional manifestation of the primacy of negative liberty. One positive aspect of the rule of law for the value pluralist is that such an institutional framework offers a greater opportunity for the preservation of negative liberty than managerial/teleocratic governments. This is because the government in a nomocratic state under the rule of law has no substantive purpose to force upon all of its citizens. As Hayek observes, “in the ordinary sense of purpose, law is…not a means to any purpose, but merely a condition for the successful pursuit of most purposes.”23 Citizens are free where the law is silent, and, though the area of such silence will necessarily differ from nomocratic state to nomocratic state and even from time to time within a nomocratic state depending upon other conditions (e.g., natural disasters, disease, economic distress, war, pestilence, etc.), the nomocratic pluralist regime does not rule based on virtue or truth but on the acknowledgment of the citizens that it is authorized only to rule by certain sorts of noninstrumental laws. In contrast to a nomocratic pluralist state, the managerial or teleocratic state offers no protection of negative liberty. Here the citizen’s purposes, plans, and projects are of little or no consequence since the relationship between citizens is that of coworkers or comrades in pursuit of a substantive purpose, like the maximization or equalization of wealth, the treatment of some universal malady like racism or sexism, the material and/or psychological rectification of supposed past injustice, the purification of the nation’s soul, or the education of a supposedly ignorant adult population. The state here is understood as analogous to a business corporation, a psychological hospital, a super-organism, or a primary school, and the role of

23 Hayek, Law, Legislation, and Liberty: Volume 1, 113.

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the government is to manage its purpose or purposes. Thus, there is no place for the negative liberty necessary for the pursuit of the purposes of individuals because those private purposes have disappeared into the maw of the great enterprise itself. Whether the result be the malign prospect of Orwell’s Nineteen Eighty-Four or the seemingly more pleasant vision of Huxley’s Brave New World, negative liberty has no place in a teleocratic state. It is, of course, true that even the noninstrumental laws promulgated by a nomocratic state restrict negative liberty in many ways.24 However, the rule of law in a nomocratic state offers a specific kind of freedom of its own (i.e., liberty under the law) while avoiding the total destruction of negative liberty which arises under managerial/teleocratic government. This is so because noninstrumental rules, unlike policies, commands, etc., do not require substantive actions by individuals, but instead constitute the conditions under which any individual pursues her projects, plans, and purposes. As Hayek notes, “a rule of conduct cannot be ‘carried out’ or ‘executed’ as one carries out an instruction. One can obey the former or enforce obedience to it; but a rule of conduct merely limits the range of permitted action and usually does not determine a particular action; and what it prescribes is never accomplished but remains a standing obligation on all.”25 This liberty under the law also coheres with and complements the liberty associated with human agency. The state, understood as a compulsory association, can only respect the moral agency of its citizenry if it rules by general noninstrumental laws which do not prescribe specific actions, but place conditions on the choices or purposes of citizens. In contrast and given the compulsory nature of the state, the managerial/teleocratic state involves a denial of the importance of human agency, as it necessarily forces individuals into pursuing

24 Hayek suggests that “the aim of the rules of law is merely to prevent as much as possible, by drawing boundaries, the actions of different individuals from interfering with each other.” Hayek, Law, Legislation, and Liberty: Volume 1, 108. At the same time, many laws do not act coercively because most individuals have no desire to commit the acts that are prohibited. Troy has no desire to murder anyone; Dan has no desire to commit arson, Steve has never thought about embezzling; Jess has never been tempted to burgle; etc. There will be some who will feel such laws as restrictions on their negative liberty, but one assumes that they would not make up a substantial portion of the population. And, without the desire or the ability either, the coercive threat is not exactly. 25 Hayek, Law, Legislation, and Liberty: Volume 1, 127.

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purposes that are not of their own choosing. The freedom which characterizes voluntary purposive relationships is absent from the teleocratic state. Such individuals are servants of the state, which resembles a despotism, in the Greek sense of the term. The people who comprise the state are not citizens, but the chattel resources of a managerial government. As stated, the freedom specific to the rule of law results from the fact that the law does not specify specific substantive performances, but, instead, only sets the conditions in which conduct occurs. As suggested in the first section, the law according to this conception resembles the grammar of a language, which offers rules that provide the conditions of expression or communication, but does not specify what one says. The recognition of the authority of law does not diminish individual freedom any more than the recognition of the general rules of grammar reduces an individual’s ability to speak. Or, as mentioned above, laws are like the rules of a game. Chess is constituted by the rules, and the rules prohibit certain actions, but they do not positively identify correct actions. In this way, the law does not prohibit the killing of other human beings, as is obvious by the fact that killing someone in self-defense or as the result of an authorized order from a superior officer in time of war or as an authorized police officer whose life is threatened or is defending a victim or potential victim of a crime are not considered criminal acts. The law prohibits killing others murderously, just as the rules of chess don’t prohibit moving the pawn, but moving the pawn in a particular way. Thus, like the speakers of a language or the participants in a game, individuals who live under the rule of law have a great deal of freedom to pursue their own projects, within certain conditions. This understanding of freedom under the rule of law is politically manifested in a nomocratic pluralist state governed by general rules of conduct applicable to all citizens, but favoring no particular substantive notion of justice or the good life. The rule of law offers stability and predictability, which serve as a context necessary for project pursuers, and flexibility, which offers opportunity for alterations to suit changing ideas about what is and isn’t acceptable action in pursuit of various values.26 It constitutes

26 These two aspects of the rule of law are paralleled by two recurring political dispositions toward the law. Conservatives have stressed that it is essential to have stable laws because these allow for individuals and groups to plan their pursuit of the good life knowing that circumstances won’t be altered in radical ways that undermine such a pursuit, while progressives have emphasized the need for constant attention to possible injustice in

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the lowest common denominator which all citizens agree to observe while pursuing their own private conceptions of value. As understood from most perspectives, these rules will have injunctive force. That is, they will be considered to have normative moral import of some sort. From other perspectives (i.e., those of religious, moral, or ideological monists), these rules will be understood in a more purely descriptive way, and those acting from other perspectives might view their obedience as strategic, possibly disappearing with a radical change of circumstances.27 On the other hand, this obedience might become normalized and result in a recognition of the injunctive character of public moral rules.28 The functioning of the free market in a nomocratic pluralist state is a final example of liberty under the rule of law.29 As mentioned above, markets are constituted by rules, but these are noninstrumental rules which in the nomocratic state are laws. Markets are extraordinarily important in nomocratic states populated by self-conscious value pluralists because they allow people who do not share any substantial agreement about ultimate values to get along publicly in their transactional relationships. There is no need to agree with one’s barber or haberdasher or grocery clerk about literature or politics or religion or philosophy. Stacy, a self-proclaimed climate change denier, wants to sell her electric Nissan Leaf e+ in order to buy a Hummer, while Rhett, a charter member of Earth First, wants to rid himself of any connection with carbon-based pollution and thus desires an electric automobile. Mirabile dictu, they agree on an exchange without having to agree on anything else.30 Markets

the hope that the laws more adequately treat each individual citizen equally and fairly. For an intriguing examination of the dialectic of the conservative and progressive disposition, see R.G. Collingwood, The New Leviathan, Revised Edition (Oxford: Oxford University Press, 1992) 208–211. 27 Hart notes that “it is possible to be concerned with the rules, either merely as an observer who does not himself accept them, or as a member of the group which accepts and uses them as guides to conduct.” He calls these the “external” and “internal” points of view. Hart, The Concept of Law, 89. 28 It is likely that the early Mormons accepted restrictions on polygamy strategically, as

a means of surviving, but eventually, at least according to official Mormon doctrine, the Mormon Church has accepted the normative moral force of the abolition of polygamy. 29 For a compelling examination of the connection between law, negative liberty, and free markets, see Eric Mack, Libertarianism (Cambridge: Polity Press, 2018) 74–108. 30 The example is an adaptation of an example that Gerald Gaus uses in his insightful discussion of the central importance of property and markets in an open society. Gerald

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also support the institution of private property, which is a central manifestation of the negative liberty protected in a nomocratic state. Private property is both an extension of the personality of an individual and an amplification of the person’s capacities to engage in the pursuit of her plans and projects. Property and markets are actually mutually supporting institutions, and the market itself is an exemplary case of the freedom specifically associated with practices (like games, languages, etc.) which are constituted by and articulated in noninstrumental rules. One is not told what to buy, but given conditions under which buying and selling can take place.

3

Institutions and Politics

I will conclude this final chapter with a brief consideration of some of the concrete institutions through which the nomocratic pluralist state manifests the rule of law. These institutions are of fundamental importance in a nomocratic state, but, of course, there is no foolproof way of constituting institutions that will guarantee the preservation and success of any sort of political community. So, my outline of these institutions is not meant to be a blueprint for them, nor is it meant to suggest that such institutions themselves would guarantee the preservation and protection of any nomocratic pluralist political community. One of the central claims that I have made in this book is that conflicts between values are inevitable and not eliminable from human practical life. Though a nomocratic pluralist regime has no substantive material or spiritual purpose, it might be said that such a government’s procedural purpose is to minimize conflict and to resolve conflicts when they do occur, as they inevitably will. There are at least two significant types of conflict that will inevitably occur in a nomocratic pluralist political community. First, there will be conflicts over whether particular individuals have adequately fulfilled their obligations under the law. Conflicts of this sort involve questions concerning the facts of any particular case (e.g., Did Matt actually shoot Bruce? Was it an accident? Did Bob leave his gate open, thus allowing little Tommy to wander into his yard, fall into his pool, and drown?), and whether the facts indicate that a specific individual in the case failed to adequately fulfill his obligations under the Gaus, The Tyranny of the Ideal: Justice in a Diverse Society (Princeton: Princeton University Press, 2016) 202–203.

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law (e.g., If Matt shot Bruce, but it was an accident, then Matt will not be charged with murder, and if Bob did not leave his gate open, but the child climbed the fence or broke the gate, then Bob will not be held liable for the death of the young urchin). As discussed above, the law does not prescribe specific actions, and, thus, underdetermines the obligations of those responsible under it. It necessarily has to be applied, in a sense, to particular human actions. So, what is needed is a judicial institution authorized to hear cases in which a supposed failure to meet an obligation has occurred, and to resolve them in a final manner. The rule of law then requires an institution capable of relating the generality which is characteristic of law to the particularity of specific performances. It is one of the formal features of law that it must be publicly known in order for citizens to be able to fulfil their obligations under it. The judicial institution through adjudication of cases is the means in which the law is made known in contingent particular circumstances. The indeterminacy of law necessitates an authoritative judicial institution which acts as the final arbiter of the lawfulness of particular actions. For example, if there is a law stating that the use of firearms during an illegal drug transaction is a further crime itself, then a judge might have occasion to determine what counts as “using a firearm.” So, if a person trades an unloaded .45 for a large bag of cocaine, is that person “using a firearm” in a drug transaction or is he exchanging his legally acquired handgun for an illicit substance? As such a case indicates, the necessary generality of law means that the judicial conclusion is never a merely logical deduction from the law. Further, because the judicial institution’s purpose is to deal with specific cases, such an institution is not authorized to consider whether the law is a wise, righteous, or good law or not. Thus, judges are precluded from acting as quasi-legislators or philosopher-kings who make judgments based on their own particular beliefs about what is good, true, and right. The judicial institution is, however, authorized to make judgments about the validity of the law according to its procedural origin and its formal characteristics. Thus, it is perfectly just for a court to rule that a retrospective law or an instrumental policy or decree is not law, at all. Of course, the latter might still have been authorized by noninstrumental law, as when a legislative body assigns a policymaking authority to a specific office (e.g., a law might designate a specific office as responsible for the relationships of the nomocratic state with other states).

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The second type of conflict that will inevitably occur in a nomocratic state is disagreement over whether specific laws are good laws or not, and whether to change such laws by amending them, abrogating them, or creating new laws. This sort of consideration is of a categorically different kind than the question of whether a law is valid. The question of whether a law is valid is not a political but a juridical one. The consideration of a law in terms of its desirability, on the other hand, is the primary concern of the politics of a particular nomocratic pluralist community. For example, Bill murders his aunt in order to collect a very large inheritance. He hopes to get away with the murder, which is against the law after all, but, alas, Bill is not a successful criminal and is captured, tried, convicted, and sent away for life. However, if there is no law against a murderer collecting his inheritance as the result of murder, Bill will still receive his inheritance, even though it might not be of much use to him. It is not up to a judge to legislate this situation, but to rule according to the law is it is. However, it is perfectly reasonable to argue that criminals should not be allowed to benefit from their crimes, and to make an argument that a law to that effect ought to be passed (but not enforced against Bill, since that would constitute a retroactive law). This second sort of consideration of the law, in terms of its desirability or goodness, requires a legislative institution with the authority to create new law, and amend or abrogate old law, and the procedure by which law is created, amended, or abrogated is composed of laws which authorize a legislative office to consider the desirability of amendment or enactment. However, the nature of law in the rule of law precludes the consideration of the desirability or lack thereof of the formal characteristics of law itself. Politics in a nomocratic pluralist state is concerned only with changes to the procedures by which law is made or unmade, and with the content of the law. The content of law is an expression of both the things that the citizens approve of and disapprove of, but also an expression of their understanding of the limited scope available for translating approvals and disapprovals into law because of the importance of toleration and the commitment to negative liberty. Politics in a nomocratic pluralist state is also severely delimited by the formal characteristics of law specific to the rule of law. Thus, these formal characteristics entail that legislation should be indifferent to particular interests, should neither be secret nor retrospective, should posit no obligations outside the law, and should consider citizens to be equally obligated to the law. These characteristics exclude much of what passes

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as legislation in modern liberal democracies.31 The protection of special interests, whether racial, sexual, ethnic, business, labour, etc., here is understood, not as the result of political actions, but instead as the result of misconceiving the government as the manager of the national resources of the state. The consideration of the wisdom or foolishness of the law cannot be related to its contribution to a specific substantive result, like material equality, growth of the GDP, or some ideologically charged conception of social justice. As Chandran Kukathas observes, “social justice makes sense as a political ideal within a closed community of like-minded people but cannot coherently be pursued across an abstract order of people who interact with and relate to one another not because they share particular deep ethical commitments but in spite of the fact that they do not.”32 So-called social justice warriors, despite their declamations of their own tolerance, misconceive the nature of the modern state as a teleocracy, and, if they had their way, the result would not be tolerance of difference, but a Procrustean politics in which we become “a closed community of like-minded people.” There are some maxims that self-conscious value pluralists would take into consideration when deciding whether or not to create laws, amend them or abrogate them, and these relate directly to their commitment to both negative liberty and toleration. I will offer three examples of such general maxims, but there are, of course, a great number of these. First, it is generally a foolish idea to pass a law that is either not enforceable or whose enforcement would require a substantial interference with the freedom of the citizens, so, for example, laws prohibiting certain sorts of consensual sexual acts are suspect. Second, the government should not regulate actions that do not harm others or and should not regulate harmful actions consented to by the actors themselves, so laws against prostitution and most drug prohibitions should be abrogated. Third, it is unwise to pass laws which are contrary to the general moral sensibility of the actual citizens of a state, so, as above, laws prohibiting activities 31 Oakeshott notes that politics requires a “disciplined imagination which focuses upon the practices of just conduct and upon the conditions which should be required to be acknowledged and subscribed to under threat of civil penalty or sentence of civil disability.” Oakeshott, On Human Conduct, 164. 32 Chandran Kukathis,” Hayek and the State,” Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law, David Dyzenhaus and Thomas Poole, eds. (Cambridge: Cambridge University Press, 2015) 289. As Hayek notes, “the term ‘social justice’ [is] entirely empty and without meaning. Hayek, Law, Legislation, and Liberty: Volume 2, xi.

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that significant numbers of citizens either want to engage in or do not disapprove of (e.g., smoking marijuana) should be done away with. Finally, since there is an expectation that the laws will be followed adequately and a belief that those that fail to do so ought to be punished in some way, there will need to be an executive institution charged with preventing violations, capturing suspected violators, and carrying out the sentences of the judicial institutions. The executive will also be responsible for foreign policy and welfare administration, but all of these responsibilities will be derived from laws which assign them to the executive office. The executive office need not necessarily be completely separated from the other two institutions. Indeed, given the tendency of modern executives to rule by decree and usurp the legislative prerogative, the executive office might be split in two with policing and punishment under the judicial institution and with foreign policy and welfare administration under the legislative institution. The executive and judicial functions are connected by their relation to specified performances under the authority of the law. Executive tasks involve both the execution of judicial commands and the administrative function of policing the political community. At the same time, a nomocratic state will be just one state in relation to others, and, in this particular circumstance, the government, acting on behalf of the interests of the nomocratic state, must engage in a managerial or teleocratic enterprise. That is, the foreign relations of the nomocratic state will be handled by executive officials, but the formulation of foreign policy will still take place under the authority of laws established by the legislative institution.

4

Conclusion

Most legal philosophers begin by attempting to define the rule of law without reference to any other consideration, and often conceive of the political community, at least in part, as a teleocratic or managerial enterprise. For such writers, the rule of law is only one aspect of a good society, and other instrumental rules, policies, and institutions are necessary and often override any commitment to the rule of law. The rule of law in such a managerial state is merely a means for the government to achieve its purposes. I begin with a characterization of value pluralism and conclude that the kind of political community which self-conscious value pluralists would prefer is a distinctive kind of legal association. Because its members have no common substantive purpose, such a community

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cannot be understood as a teleocratic enterprise association. Instead, the community is best conceived of as an association of individuals engaged in pursuing their own purposes and related to each other by their acknowledgment of the authority of a set of general rules which condition their choices and their interactions with others. This sort of political community is what I have called a nomocratic pluralist state under the rule of law.

CHAPTER 8

Conclusion

Abstract The concluding chapters of most works of moral and political philosophy are, in some ways, redundant and not particularly important. That is because philosophy, unlike politics, concerns itself primarily with reasons and arguments, and, though conclusions are drawn from such reasons and arguments, it is the reasons and arguments themselves that drive the practice of philosophy. The phrase “politics makes strange bedfellows” relates to the practical nature of the conclusions of political actors, who do not have to know, much less agree with, the reasons that their supporters or their opponents happen to have come to the same political position as them. Unlike the statesman whose job is still just beginning when she achieves a consensus conclusion about some policy problem, the work of the moral or political philosopher is finished when her arguments have led to their conclusion, and, in my case, that is the case, as I have completed my account of value pluralism, practical reason, and the nomocratic pluralist state. Therefore, instead of offering a lengthy summary of the book, this chapter offers here a brief restatement of the conclusions reached in the body of the work. Keywords Value pluralism · Nomocratic pluralism · Negative liberty · The rule of law

© The Author(s) 2021 K. B. McIntyre, Nomocratic Pluralism, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-53390-8_8

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The concluding chapters of most works of moral and political philosophy are, in some ways, redundant and not particularly important. That is because philosophy, unlike politics, concerns itself primarily with reasons and arguments, and, though conclusions are drawn from such reasons and arguments, it is the reasons and arguments themselves that drive the practice of philosophy. The phrase “politics makes strange bedfellows” relates to the practical nature of the conclusions of political actors, who do not have to know, much less agree with, the reasons that their supporters or their opponents happen to have come to the same political position as them. Unlike the statesman whose job is still just beginning when she achieves a consensus conclusion about some policy problem, the work of the moral or political philosopher is finished when her arguments have led to their conclusion, and, in my case, that is the case, as I have completed my account of value pluralism, practical reason, and the nomocratic pluralist state. Therefore, instead of offering a lengthy summary of the book, I offer here a brief restatement of the conclusions reached in the body of the work. I began by offering a critique of monistic accounts of human value and moral life, focusing specifically on deontology and utilitarianism, the two most prominent contemporary moral theories. I concluded by expressing my skepticism concerning the possibility of creating or discovering a single decision procedure or single value ranking system in ethical life. Instead, I claimed that values are both incompatible (i.e., there are multiple things that humans value and that are objectively valuable, and that these things do not form a coherent whole, but conflict with each other) and incommensurable (i.e., that values are not completely comparable according to a single metric). Thus, moral decisions are almost always more complex than moral monists will allow, and conflict is not necessarily a sign of the irrationality of particular human beings or particular groups of human beings, nor of unjust social institutions. Such conflicts are inherent in human practical life, but the existence of conflicts between values does not mean that moral judgments (or, more generally, practical judgments) are purely subjective or relativistic. The existence of such conflicts does mean that a distinctive conception of practical reason is relevant to consideration of moral and other practical value conflicts. As stated in chapter four, practical reason deals with things amenable to alteration, and, thus, does not allow for the precision and certainty associated with scientific and mathematical reason. Instead of developing deductive proofs in answer to moral and other practical

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questions, practical reason involves the development of connoisseurship, in which agents are habituated and initiated into various moral and nonmoral practices which condition and constitute the self-understood situations within which they make their intelligent or not-so-intelligent choices. Since these choices are also valued as choices by the specific individuals who make them, this subjective aspect of valuation leads to a decidedly more contextual conception of practical reason than is considered by moral monists who reject any sort of partiality in moral judgment. Because there is no single universal scale of values by which the choices of individuals can be measured and because individuals are understood to be pursuing their own conceptions of the good life, the value of the projects pursued by the individuals constitutes one aspect, and sometimes a significant one, of moral and other sorts of practical judgments. Thus, complexity, conflict, and subjectivity are necessary and inevitable aspects of the practical life of human beings and cannot be dissolved by the creation of a quasi-mathematical decision procedure. I concluded the first half of the book by offering a brief account of the minimum moral content which any version of the good life or valuation must meet. This minimum or core morality is connected with a minimal conception of human nature. At the very minimum, it concerns the common biological needs of human beings for the preservation of life, such as food, shelter, clothing, clean air and water, etc., but there is also a thicker description of the generic minimal content of a good life which includes the recognition of the importance of intimacy and social life to individuals and groups. This core morality serves as a limit to what can possibly count as a reasonable account of the good life for human beings. Thus, value pluralism rejects both the one-sided objectivity of monistic morality and the one-sided subjectivity of relativistic morality. After offering my own version of value pluralism in the first half of the book, I spent the second half of the book presenting an account of the nomocratic pluralist state that would be most appropriate for selfconscious pluralists. I claimed that self-conscious value pluralists would reasonably conclude that the protection and promotion of negative liberty ought to be considered as the rebuttable first priority of an authentically pluralist political community. This is because negative liberty preserves a space within which each person can pursue her own projects and act on her own commitments; it allows for the possibility that she might change her mind about her commitments, projects, and the entire direction of

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her life; it preserves and supports the idea that good human projects and commitments are plural and that there is no single hierarchy that could be composed which would be acceptable to all; and it preserves and supports the notion that projects and commitments which do not violate the minimum content of morality should be allowed to flourish without fear or favor from government or from our fellow citizens. As a complement to negative liberty as the unique responsibility of a selfconsciously pluralist government, the first virtue and the differentia of the public morality of a pluralist community would be toleration of others, especially toleration of what others choose to do with their liberty. I concluded the body of the work by elaborating a particular conception of the rule of law as the most adequate instantiation of the defense of negative liberty appropriate to what I have called a nomocratic pluralist state. Such a political community is composed by individuals related to one another by their acknowledgment of a common rule of law obligatory for each of them. The rule of law is understood as a system of noninstrumental general authoritative rules which condition but do not determine the choices of individuals who are free to pursue their own choices under those conditions. Indeed, the rule of law is one of the conditions under which liberty flourishes. Laws under this conception are not commands but a general rules, and they are not instrumental but conditional. Thus, there is considerable latitude for human action under the law. Such a nomocratic pluralist state provides the conditions under which self-conscious value pluralists can pursue their own specific conceptions of a good human life. In legal and political terms, each individual in such a state is understood first and foremost as a citizen equal to other citizens, but citizenship in the community does not exhaust that person’s identity. She also might be a parent, a spouse, a sibling, a lawyer, a doctor, a member of the American Political Science Association, a member of the Mormon Church, a lover of beer and cheese, a follower of Swansea Football Club, etc. She, like her fellow citizens, will be engaged in multiple transactional purposive relationships, but her identity as a citizen is not a transactional relationship. Indeed, since there is no single purpose that all could agree upon, the political association cannot be understood as primarily a transactional purposive association; instead it is relationship in terms of the acknowledgment by each citizen of her obligation to observe the noninstrumental rules of association in making her decisions and taking her actions in pursuit of her purposes. This sort of political community is what I have called a nomocratic pluralist state under the

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rule of law, and the purpose of the rule of law, if one insists on using such language, is not to achieve a specific or particular substantive result, like the material equality or the personal autonomy of the citizenry, the maximization or equal distribution of a supposed national product, the enlightenment or salvation of the world, the curing of anxiety, the remediation of supposed past wrongs, etc. The purpose is to constitute the conditions of peaceful coexistence in which individuals pursue their own purposes. In the body of the work, I have attempted to make explicit the connection between value pluralism, negative liberty, and the rule of law in a nomocratic pluralist state. In so doing, I hope to have avoided the difficulties associated with attempts to defend classical liberal institutions by reference to concepts which are inherently theoretically questionable, such as “natural/human rights.” I believe that locating the justification for what I have called nomocratic pluralism in value pluralism offers a much firmer foundation for such classical liberal institutions (e.g., negative liberty and the rule of law). I also believe that connecting such institutions with value pluralism provides sound theoretical and practical reasons for rejecting the sort of Manichean political rhetoric which has characterized Western liberal states (especially the USA) in the past few decades. In practical terms, the arguments that I have made and the conclusions that I have reached should also give rise to considerations about contemporary policy questions concerning immigration (both legal and illegal), multiculturalism, citizenship, government regulation in the area of personal privacy, questions of interference in the internal affairs of foreign states, and many others. However, such policy questions are beyond the purview of the current volume, and, thus, I will leave them in abeyance for the nonce.

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Index

A Act utilitarianism, 11, 26, 27, 29–34, 56, 78, 93 Anderson, Elizabeth, 62, 115 Anscombe, G.E.M., 66, 69, 71, 87 Aristotle, 52, 55, 66, 67, 69, 71, 72, 74, 76 Austin, J.L., 19, 139 Autonomy, 4, 7, 24, 45, 100, 117, 118, 132, 133, 143, 144, 146–149, 151, 157, 158, 164, 197

B Baier, Annette, 3 Balint, Peter, 156, 157, 159, 160 Berlin, Isaiah, 3–5, 39, 70, 103, 111, 112, 117, 132, 135–138, 140, 143–146, 149–153, 179 Brandt, Richard, 21, 25

C Chang, Ruth, 57, 60 Classical liberal pluralism, 4, 7, 100, 132, 134, 150, 155 Coercion, 19, 108, 141, 142, 146, 182 Collingwood, R.G., 66, 69, 186 Consequentialism, 79, 117, 126 Crowder, George, 102, 132, 158

D Deontology, 5, 10, 11, 14, 15, 27, 29, 35, 56, 78, 79, 90, 93, 94, 117, 118, 194

E Egalitarian pluralism, 101, 117, 129, 132 Epistemological pluralism, 68

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 K. B. McIntyre, Nomocratic Pluralism, Palgrave Studies in Classical Liberalism, https://doi.org/10.1007/978-3-030-53390-8

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INDEX

F Flew, Anthony, 116 Foot, Philippa, 74, 75, 87, 93, 95 Frankfurt, Harry, 123, 124, 149 Freedom, 19–23, 48, 102, 104, 108, 112, 133, 137–140, 142–146, 151, 153–155, 157, 165, 172, 174, 182, 184, 185, 187, 190 Freedom of association, 102, 113, 136, 150, 153–155, 157, 173 Free will, 137 Fuller, Lon, 5, 170, 174, 176, 180, 181

G Galston, William, 132, 152 Gardner, John, 171, 179, 180 Gaus, Gerald, 4, 5, 132, 133, 150, 152, 186, 187 Gewirth, Alan, 5, 10, 11, 14–25, 28, 31, 56 ‘Government House’ utilitarianism, 32, 33 Gray, John, 4, 7, 39, 101–114, 123, 138 Griffin, James, 34, 132, 147, 148

H Hampshire, Stuart, 3, 41, 42, 88, 112, 132, 133, 135, 140, 163 Hare, R.M., 5, 10, 11, 21, 25–35 Harm principle, 141, 144, 150 Hart, H.L.A., 88, 170, 179–181, 186 Hayek, Friedrich, 5, 105, 142, 169–172, 174, 176, 181, 183, 184, 190

I Incommensurability of values, 16, 105–107, 129, 151

Incompatibility of values, 56 Instrumental rules, 169, 171, 173, 174, 191

K Kekes, John, 3, 5, 39, 41, 57, 68, 88, 95, 102, 124–126, 128, 151 Kelsen, Hans, 180 Kukathas, Chandran, 113, 190 Kymlicka, Will, 115

L Larmore, Charles, 3, 132, 151 Liberal pluralism, 4, 7, 8, 100, 101, 117, 132, 134, 135, 144, 145, 150, 168 Liberty, 3, 4, 6–8, 24, 38, 48, 57, 86, 90, 100, 101, 108, 113, 125, 127, 129, 132, 134–146, 149, 152–154, 157, 169, 170, 179, 182, 184, 186, 196 Lomasky, Loren, 5, 84, 132, 152, 154 Loughlin, Martin, 168

M Macedo, Stephen, 132 Mack, Eric, 5, 136, 140, 142, 149–153, 186 Managerial government, 185 McCabe, David, 103, 104, 150, 163 Modus vivendi pluralism, 101–104, 107, 109, 114, 129, 132 Moral monism, 2, 3, 5, 10–12, 14–18, 25, 28, 32, 35, 37, 38, 48, 51, 63, 143 Moral philosophy, 3, 5, 10–12, 14, 16, 37, 46, 50, 56, 112, 118 Moral pluralism, 1, 10, 38, 41, 78, 79

INDEX

N Nagel, Thomas, 4, 7, 14, 35, 44, 101, 115–128 Narveson, Jan, 24, 122, 140, 141 Neal, Patrick, 60, 103, 104, 109 Negative liberty, 4, 6–8, 21, 23–25, 97, 100–104, 108–110, 113, 114, 129, 132–135, 139–147, 149–158, 161, 164, 165, 168, 169, 182–184, 186, 187, 189, 190, 195–197 Nelson, Eric, 122, 123 Nomocratic pluralism, 4, 8, 100, 134, 155, 168, 179, 197 Non-instrumental rules, 8, 169, 171, 172, 174–178, 184, 186, 187, 196 Nussbaum, Martha, 3, 60

O Oakeshott, Michael, 5, 66, 69, 86, 132, 137, 170–172, 174, 176, 180, 181, 190

P Pojman, Louis, 122, 124 Positive liberty, 4, 7, 21, 100, 108, 132, 133, 138, 139, 143, 144, 147, 149, 151, 152, 154 Practical reason, 5, 6, 10, 13, 62, 63, 65–69, 71–73, 75, 80, 83, 84, 107, 134, 137, 138, 194, 195, 197 Principle of generic consistency (PGC), 18, 23–25 Projects, 3–7, 10, 14, 43, 45, 53–55, 58, 67, 69, 71, 73, 75–87, 90, 92–95, 97, 102, 105–107, 109, 110, 112–114, 117, 118, 120, 121, 126–128, 130, 132, 133,

213

141, 148–150, 152–156, 174, 175, 182–185, 187, 195, 196

R Rawls, John, 10, 12, 101, 102, 104, 105, 109, 111, 136 Raz, Joseph, 3, 4, 60, 132, 147, 148, 158, 159, 180, 181 Rorty, Amelie, 57, 68 Rule of law, 4, 8, 94, 127, 142, 153, 164, 168–178, 180–189, 191, 192, 196, 197 Rule utilitarianism, 25, 29, 30, 56

S Schmitt, Carl, 38 Single decision procedure (SDP), 2, 5, 10, 12–16, 18, 23, 25–27, 29, 32, 35, 37, 48, 56, 57, 62, 63, 66, 80, 90, 91, 136, 145, 153, 182, 194 Smart, J.J.C., 29, 34, 79 Stocker, Michael, 3, 13, 49, 50, 54, 77 Strawson, P.F., 2, 138, 148

T Tamanaha, Brian, 168 Teleocratic government, 149, 183, 184 Theoretical reason, 66, 68 Thomas, Alan, 115, 118, 127 Two-level utilitarianism, 10, 11, 25, 32

U Utilitarianism, 5, 10, 13, 14, 25, 27–29, 31, 33, 34, 39, 56, 57, 62, 78, 90, 94, 111, 194

214

INDEX

V Valuation, 5, 6, 39, 45–48, 66, 67, 69, 84, 97, 112, 146, 151–153, 156, 164, 195 Value pluralism, 2–6, 38, 39, 41, 46, 51, 57, 65, 67, 78–80, 82, 90, 91, 96, 97, 99, 101–105, 107–116, 123, 125, 126, 128, 134–136, 140, 143, 145, 146, 148, 150, 153, 155, 156, 158, 162–164, 170, 191, 194, 195, 197 Virtue, 6, 8, 28, 29, 35, 38, 40, 49, 56, 66, 71, 74–78, 80, 97, 100, 109, 134, 152, 155, 156, 159, 160, 162, 181, 183, 196

Voluntary association, 52, 149

W Waldron, Jeremy, 168 Walzer, Michael, 115, 158 Warnock, G.J., 27, 30, 160 Weinstock, Daniel, 111, 153 Welfare liberal pluralism, 4, 7, 100, 132, 145 Wiggins, David, 40, 58, 60, 66, 71, 72, 84, 89 Williams, Bernard, 3, 28, 29, 32, 33, 38, 51, 79, 81, 92, 95, 110–112, 117, 132, 158 Wolf, Susan, 38, 40, 79, 81, 82, 90