J.S. Mill and the torch of the eternal garbage fire

Free speech has many false friends and straw-enemies. Some of those misapprehensions come from the land of freedom and milk and honey and stars and stripes and things. Some come from inside of the Canadian academy. Some call themselves leftist, some right-wing. The conversation, at present, is all a bit warped. But if you wanted to get things straight, you could also consult the classics if you wanted, right from the horses’s mouth — Mill’s On Liberty.

On Liberty is sometimes mischaracterized as a kind of free speech absolutism, i.e., for whom one cannot limit speech on the basis of content, and/or which is directed only at the proprieties of government intervention and not social justice among individuals. If it were those things, it would be boring and wrong. In fact, though, Mill’s argument has all sorts of nuances and compelling features that, at the very least, make it worthy of continued attention. His endorsement of freedom of speech is not absolutist, since the principle of liberty is a function of his harm principle. Hence, he does endorse limitations to speech, and does believe it is sometimes justifiable to sanction the speech of others. You just have to be sensitive to the qualifications.

The first two limitations on speech worth mentioning right off the bat, and which many people reading this already know:

a) Only applies in modern contexts and between adults. Mill’s defense of free speech is a point about how we ought to design modern political institutions and culture which are responsive to reason. For roughly the same reason, a parent can limit the speech of a child, since children are ostensibly not capable of rational conversation. Or so says the parenting manuals in Victorian era England, presumably.

b) Contextual limits. The defense of freedom of speech does not prevent us from limiting the speech of someone who is inciting of mob violence (e.g., the corn-seller’s case). Plausibly enough, the American Court offered the example of yelling fire in a crowded theater as speech that can be sanctioned. (Implausibly, this was done to justify government sanctions on wartime dissidents.)

So, with those caveats out of the way, the question is: “Can we, people living in relatively evolved political societies, and speaking in non-incitement contexts, ever sanction someone for the contents of their speech?”

The answer depends on who you are — a government or a private citizen. For governments, the answer is pretty much a flat ‘no’. A government needs to lay off imposing sanctions on individuals for the things that individuals say. Hence, Mill thinks that blasphemy laws, and even libel laws, are legislatively wrong. An interesting additional question is whether or not legal restrictions on hate speech — e.g., Canadian restrictions on hate propaganda — are directed at harms based on content or context. (FWIW, my inclination is to regard propaganda as essentially contextual in nature, and expressed hatred as intending incitement, and therefore to see it as analogous to the corn-seller’s case. But this seems to be a matter of interpretation, and reasonable people may interpret it differently.)

Some of the people who call themselves libertarians seem to think that freedom of speech only concerns governmental regulations, not interactions between private citizens. But this is not so; private citizens are obliged to respect freedom of speech as well. It is just that their internal calculations have to be a bit more nuanced.

Consider the fact that there are many kinds and qualities of bad effects that we can visit on others when we target them with speech:

Hurt vs. harm. Suppose there’s a difference between subjective hurt and objective harm. We can distinguish them as follows: an action produces subjective hurt when the act produces a negative effect on the patient, but only on the condition that the patient permits themselves to be hurt; while an action is an objective harm if the negative effect is visited on the patient irrespective of whether or not they recognize it. So, you can’t necessarily be held to account just because a person chooses to interpret a turn of phrase in a way that makes it appropriate to feel slighted. The idea is that you are not necessarily blameworthy if you happen to hurt someone’s feelings, so long as they are not otherwise worse for the wear. In contrast, there is a prohibition on intending to cause objective harm to others. So, e.g., even if libel laws make for bad governmental policy (according to Mill), private citizens are doing wrong if they lie about others and cause reputational damage.

Acts vs. facts. Mill notices that there’s a difference between objective harms related to (a) the statement of facts about the target, and (b) objective harms delivered through the act of speech. For an example of the first kind of harm: by calling a thief “thief”, you might end up causing the thief harm, in a sense; but the harm issues from the facts, not from the act of talking about it. And it is fine to do someone objective harm just by reporting accurately on the vile things they’ve said or done. If a pizza guru says, “I hate gay people”, then I can tell ordinary decent folks what the pizza guru said, and they can boycott him. And if a whistleblower says, “My organization is killing people with drones”, and they can prove it, then that speech is permissible, too, and so they ought not be sanctioned by the government.

On the other hand, you cannot just go around sanctioning people for saying things you don’t like, causing them objective harm through the creative powers of speech. That is, you shouldn’t engage in “vituperative” speech: by which he seems to mean gratuitous vilification, heckling and shaming, character assassination, and so on. He argues that the mischief that arises from these sorts of conversational bludgeons “is greatest when they are employed against the comparatively defenceless; and whatever unfair advantage can be derived by any opinion from this mode of asserting it, accrues almost exclusively to received opinions. The worst offence of this kind which can be committed by a polemic is to stigmatise those who hold the contrary opinion as bad and immoral men.” Instead, you should engage in the “real morality of public discussion“, which is to say, you should engage in good faith: “giving merited honour to every one, whatever opinion he may hold, who has calmness to see and honesty to state what his opponents and their opinions really are, exaggerating nothing to their discredit, keeping nothing back which tells, or can be supposed to tell, in their favour.” In other words, you should not contribute to the ongoing eternal garbage-fire of life on Twitter.

But, once those speech acts are taken off the table, is there any kind of speech left? Is all of our discourse turned into anodyne or inert? No — you are only barred from intending objective harm on the basis of the speech acts independently of the facts, i.e., through vituperative speech. Everything apart from that is fair game. You can speak falsely, and can hurt feelings. What you can’t do is engage in bad faith.

At any rate, this was my reading of Mill. Maybe you have your own interpretation. Either way, I think it is well worth revisiting his essays every so often, because it rewards close reading.

Aquinas and the limelight (III)

This post is about Thomas Aquinas’s comprehensive legal and juridical theory, as it relates to constitutive charters and public reason. It is part of a series loosely based on my reading of Rawls’s The Idea of Public Reason [discussed here and here]. Aquinas’s legal theory is based on public-facing associative reasons, and ultimately I would like to explore the possibility that any account of legal publicity must be at least public-facing. But even if you don’t care about that stuff, the exercise in comparing and contrasting Aquinas and Rawls is worth doing for its own sake. So let’s get on with it.

For exegetical convenience, it would be instructive to talk about non-Rawlsian accounts of justice in terms that are broadly commensurate with the Rawlsian point of view, since Rawls is both more familiar and more perspicuous, and therefore easier to defend in good faith. So, for the sake of argument, I would like to imagine how a modern-day Thomist might think about justice if they set themselves to imitate Rawlsian ways of speaking, which means bringing his theological convictions to heel. I articulate a conception of Thomism that is based on notes from my reading of the first two volumes of the Summa Theologicae. Yet this conception only inspired by Aquinas, since his theological convictions are indefensible from a scientifically literate point of view, and therefore uninteresting. So, because my reading willfully departs from Aquinas’s own views, I will self-consciously invent an object of comparative analysis that is inspired by Aquinas, but which jettisons his metaphysical views. I refer to it this composite view as Nomism, advocated by the imaginary Nomas Baquinas, a bizarro fusion of myself and Thomas Aquinas. That does not make the exegesis immune to criticism, since if our man Baquinas strays too far from the real Aquinas, then the exercise will have been a waste of time. But I hope you’ll permit the indulgence.

Oh, and to be clear — not only I am not a Thomist, I am not even a Nomist. I, personally, am only trying to see how well that one instance of a comprehensive theories of justice, and public-facing associative reasons, might fare in accounting for legal publicity in appropriate contexts. That’s the (relatively nerdy) axe I have to grind. It is not, however, meant to be a strawperson. The Nomistic view has a set of disadvantages and advantages that distinguish it from the Rawlsian one. The point of contrasting them is to enlarge our cultural imagination, at a time when inter-civilizational justice is in high demand and mature justicial intellectual programmes are in short supply.

*

Everyone agrees that the idea of ‘justice as fairness’ does not capture the full scope of a theory of justice. And by ‘everyone’, I mean, everyone including Rawls, who stressed the point very early on in his Theory of Justice. But suppose we take insufficiency of scope as an essential defect in the idea of justice as fairness. Why might we prefer a theory that covers a wider range of issues?

Like all issues in conceptual analysis, our convictions about the acceptability of a characterization of a concept has got to do with the inferences worth caring about, as far as they bear on the usage of a term (embedded in sentences). One thing worth worrying about is that Rawls has gotten the wrong unit of analysis. Perhaps the proper unit of analysis for a theory of institutional justice — the ‘basic structure of society’ — is a civilization, considered as best advice for sovereign rule, and not merely the social, economic, and political apparatus of a Westphalian nation-state, as Rawls takes it in his Theory of Justice. In that case, a theory of justice should be compared to Rawls’s Law of Peoples. Call that the macroscopic objection. But we might also think that the development of moral agency is one of the basic institutions that we need to account for in a theory of justice, just in case we think that the self is at least partly a social construction. In that case, the constituency of a civilization is not found in citizens, but in the reasons and intentions that compel them to act in social contexts. In which case, the scope of analysis would be much larger than either the Law of Peoples or the Theory of Justice, extending to a theory of law, morality, and meta-ethics. That is the microscopic objection.

Why would anyone adopt a view of such a wide scope? What’s the point of being a hedgehog on steroids? Doesn’t a comprehensive account of this kind detract from the narrow focus of a theory of justice? (The reason ‘why not’ is, I suppose, obvious. I can’t help but comment that one might need to look no further for a reason to look for alternatives to comprehensive doctrines than by observing the prohibitive length of the Summa.)

Well, there are programmatic reasons to think that perhaps the wider view is best. For one thing, it looks as though comprehensive theories are more directly capable of handling wide reflective equilibrium as a means of justification. (Granted, this is a cheap shot — ‘direct’ does not necessarily mean ‘better’.) But for another thing, we might be convinced that justice is a living thing, like a seed, which is planted in one’s own convictions and capable of growing and flourishing to the point where it becomes a model of civil life. One does not understand the form of the nature of the tree without being able to understand where it came from, and how it can and must be nurtured to survive. On this view, the constitution of a thing can be found in its genealogical facts. To provide a political theory of justice that is structured around public reason, we would need to treat those diachronic questions as being of secondary concern. But if we think that the very idea of justice is inextricable from the flow of history, then the Rawlsian synchronic approach might strike us as wrongheaded.

Anyway, if we think these requirements of scope are well-motivated, then we could say that we are seeking a theory of justice based, not just on the ideal of justice as fairness, but on a broader ideal fit for larger social circumstances — that is, on justice as goodness, i.e., where goodness is rationally beneficial, useful, and pleasant. That is the Nomistic view, for whom the idea that justice is a disposition to do right by all. Considered in the context of contemporary theories of justice, this conviction is both unexpected and unexpectedly rewarding in its consequences. But considered as a restriction of law, it is potentially disquieting, if not totalitarian, constraint on personal conduct.

**

On my retelling, Rawls’s political theory has five notable features. (1) It uses a device of representation, the original position, which functions as a procedural effectuation of the values of freedom and equality among citizens. (2) Original citizens are presumed to be sincerely interested in securing a reasonable state of cooperation — that is their strategic orientation. The output of the original position is a hypothetical contract with certain rules: (3) concerning the ideal structure of government, and (4) the demands of institutional justice. (5) The demands of institutional justice will relate both to conceptions of both the rule of law and legal validity.

1. Device of representation. I would like to say that Baquinas’s device of representation is not the original position, but something more like the position from eternity. The thought-experiment looks like this. Suppose that you were the ultimate sovereign over a whole universe, and you wished to generate the greatest potential goodness for the people who will come to populate it. Suppose, though, that the life-situation that the citizens in your universe come to experience will be fully determined by your understanding of yourself. Imagine, in other words, that you are in the narcissistic position that Kant asks us to be in with his first formulation of the categorical imperative — that you ask whether the maxims of your intentions, when generalized, could become laws of nature. How should you think about yourself, if you were placed in the position of ultimate benefactor or master role model? Aquinas suggests that you should be rather nice to yourself — that is, you ought to have an absolutely loving intent, a love for your powers of creativity, and a love for constant activity and motion. If you, a perfect being, held yourself in any lower esteem than as a perfect being, then your universe would not be conducive of the good — the people within it would have no sense of reason, or would not appreciate what is useful, or would be in an unrelenting state of misery, without that Northern Star to aspire towards. In our terms, Baquinas argues that we should adopt an optimistic political attitude.
   
2. Strategic orientation to action. Since we are assuming that goodness is necessarily rational, we should want our citizens to exercise their agency through reason, and hence to govern themselves rationally as best they can. What counts as ‘best’, though, is already conditioned by the setup. First and foremost, Baquinas suggests that the most rational option is the one that encourages generally good consequences, and seeks to minimize bad consequences. And, second, direction towards the good demands the preservation of life, and the need to seek good according to reason. The upshot, throughout, is to act charitably. These are the ways that agents behaving in an optimistic mood will behave, and expect others to behave, insofar as they participate in the position from eternity through the possession of reason. However, we should also encourage a degree of stoicism, since excessive solicitude creates misery through hypervigilance.
3. Ideal government. Baquinas thinks ideal governments should be ordered as a patriarchy. The sovereign should do their best to prize the flourishing of the sublime arts, the sciences, and the trades — essentially, the apex vocations which make a life worth living, and which make the day-to-day survival of a community possible. In this sense, political economy and distributive justice are of first concern to an ideal government. The task of the upper classes is to come to a consensus on — and then to publicize — a plan for collective action that maintains and enforces service to the community and also the requirements of charity. The second tier of government involves the means of maintaining life and order — judicial and legislative systems, health care systems, and police and military. These offices should exist and function only to the extent that they produce a society where all people are free to pursue and attain excellence. And, in the third tier, the government should take care of enriching its citizens — it should be ordered in terms of municipal associations, a scholarly community, and a system of education, all geared towards making more virtuous people. These lower tiers of government should be directed towards the preservation of a just system of rule. Because the proprieties of government are patriarchical, the system is one of associative reason.
4. Institutional justice. There are two kinds of justice — distributive and commutative. In this scheme, distributive justice demands respect for dignity, i.e., the relative contribution of a person to the community. This is broken into two kinds — duties to the sovereign, and duties to the community as a whole. By ‘dignity’, Baquinas means deference to the apex vocations, and especially, the masters of the sublime arts. Respect for dignity is given expression in a criminal code with a handful of seven basic imperatives: respect and obey the sovereign, pay your taxes, don’t harm people, don’t steal and destroy the property of others, don’t break trust, take care of your own thoughts, and pay your debts. Meanwhile, commutative justice is directed towards a principle of reciprocity, which requires, e.g., a duty of reparations and the golden rule. In all of these contexts, private reason does not have much of a place.
   
5. Legal validity and rule of law. Bad rulers can exist under the following conditions: if they fail to act charitably, order themselves in a strict class system, do it prudentially, and with a system of laws based on dignity and reciprocity. Disobeying the orders issued by tyrants is not strictly speaking breaking the law, since human law is an expression of the right, and an attempt to do well by justice, and only legitimate to the extent that it protects us against imprudence and injustice. So, ultimate legal validity of law is found in the higher law. To be sure, in normal contexts, insurrection against the rulers is illegitimate, since all authorities are at least a little bit good. Still, citizens can determine for themselves if emergencies exist requiring lawful insurrection, since is law mainly about rules that fit normal conditions.

***

On the first point, we can notice that neither Rawls or Baquinas are foundationally liberal, since neither of them permit free choice in political mood or attitude. There is nothing in their respective devices of representation that encodes the ability for original participants to choose their attitude. That said, Rawls permits relatively wider latitude: for him, the only requirement is that we not be in what in the last post I called the ‘pessimistic’ political attitude, i.e., for whom it is presumed that we have neither collective solutions nor any means of knowing them. Meanwhile, Baquinas is decidedly less liberal, as he makes optimism mandatory.

Second, Baquinas endorses a teleological theory of the right. It is similar in some respects to consequentialism, since all just actions is to increase the stock of good and reduce the bad. It is not quite act-consequentialism, though, for two reasons — first, because at some points he suggests that the right and the good are intertwined, or mutually adjusting, in the sense that sometimes the right is derived from the good, and sometimes the good from the right. Second, because virtuous practical action is stoic, and so directed towards satisficing, not optimizing, reasoning. In contrast, Rawls’s theory of justice is based around contractualist ideals, not consequences. Hence, his device of representation is directed towards the formulation of policies adopted by original citizens, and is concocted for the sake of securing a society based on freedom and equality that they can own, and results in scheme of justice where the demand for the right of equal liberty is lexically ordered above consequentialist considerations related to distributive justice.

The strongest points of difference concern their approaches to ideal government and institutional justice, as far as these relate to public and private reason. For Rawls, all offices are potentially open to any member of the public. The open status of governmental offices issues more or less directly from Rawls’s commitment to public reason, or common reason for the commons, where all have free and equal opportunity to participate. For Baquinas, the point of government is paternalistic, with stations at the top devoted to the masters of right and good. Their form of reasoning is public-facing, since their reasons are meant to bring order our public institutions, and expressly need to be promuglated. But this view of reason is nevertheless a form of associative reason, since it is not conducted by the commons or in common view. The sciences, trades, and sublime arts are not offices open to all.

What are their attitudes towards private reason? In the previous post, I noted that Rawls asserts there is no such thing. But he was mistaken. So, a stronger version of Rawlsian politics would argue that private reason has no justificatory role in developing a democratic constitution, even though it is vital to our understanding of liberty. Meanwhile, though Baquinas believes that both free choice and liberty of conscience are necessary presuppositions in moral inquiry, this freedom does not have a central place in his political theory, since the liberty that is implied is not reflected in either natural right or in ideal government. Further, Baquinas suggests that private reason ought to be tolerated, but only as a matter of prudence, since a government that pokes too much into the free conscience is one that is doing work inefficiently.

Legal validity and rule of law. Also for Rawls, while there is a wide range of reasonable disagreement among subjects, some overlapping consensus can still be found over the right and the good, and which will direct government action at any particular moment. Citizens have a duty to civil obedience that fits broadly into this conception. Rawls referred to his position as ‘dualism’, which is a fascinatingly opaque descriptor. I am not sure a normative ‘dualism’ is fully consistent with his considered opinions, however, since the ordinary law is subordinate to the higher law. In contrast, for Baquinas, the only overlapping consensus we need should be found in the upper classes — the technocrats who are looking out for the public good. The job of subjects is to obey for the right reasons. If, however, subjects found themselves in agreement that the vanguard is a form of tyranny, then the right to rule would shift accordingly. That reflects the Nomistic natural law, where definite moral duties conclusively override the dictates of the rulers, and the dictates of the rulers derive their authority from the moral law. Which is all just to say that, on this point, there is may not be a lot of blue sky between Rawls and Baquinas.

Notes on the concept of genocide

Remembrance Day has come and gone. I spent it in an Armory, listening to my parents’ choir, singing a rendition of Flander’s Fields and Handel and so on. All the hits, basically.

Samantha Power’s “A Problem from Hell” (2002) is a history of the concept of genocide. She argues that the American government’s default attitude to genocide is ambivalence.* Even if you disagree with her assessment of American foreign policy, it is also a lucid and useful volume just for the sake of understanding the imperfect legacy of the idea.

In international law, genocide is any act which involves (a) use of at least some atrocious means, (b) against protected groups as such, with (c) the intent to eliminate at least part of those groups. The atrocities in question include: killing, serious bodily or mental harm, deliberately undermining conditions of life (e.g., ghettoization), forced sterilization, and forcible transfer of children. The protected groups are “national, ethnical, racial, or religious”, and to target these groups ‘as such’ is to treat their destruction as a worthy end in itself and not just a means to a further end. Notably, this definition applies even when the aggressor is the ruler or sovereign over the targeted peoples, and it applies during wartime.

In this conceptual space the Holocaust of the Second World War is the prototype of genocide, since that episode involved all of the atrocious means (killing, torture, sterilization, etc.) and was perpetrated against the protected groups as such. During the course of Power’s recounting, we learn of other definite exemplars of genocide in the 20th century — the Armenian genocide by the Turks, the Khmer Rouge’s assault on urban centers in Cambodia, Iraq’s use of chemical weapons against the Kurds, the massacre of Muslims in Bosnia, the Tutsis in Rwanda, and so on.

Though Power does not discuss this, it is noteworthy that the Canadian residential schools program was genocide. During that decades-long institutional crime against humanity, persons of Indigenous descent were sterilized and their children were forcibly relocated, notably during the period known as the “Sixties Scoop“. It has been alleged that episodes related to this event occurred up to 2017. To be sure, it is not be a prototype in the region of conceptual space of “genocide”, but it is a definite case.

**

For some Canadians this may be too much to take in. Nobody wants to be complicit in genocide, so denial of the facts is one strategy. However, there might be some problems with our grasp of the concept itself, which are getting in the way of getting accepted. That is, there might be features of the definition that hard to deploy in cognition, because our usage fails to meet the virtues of a well-behaved categorization.

So, for instance. Some time ago, Paul Boghossian suggested that the concept of genocide was irremediably defective. His arguments are reasonable. But is he right to suggest that the concept of genocide is especially hard to parse?

I must confess that not all of his arguments struck me as decisive. (1) So, for instance, the law requires actions that are intended to eliminate at least part of a protected group, and this “in part” clause is vague to the point of ambiguity. Boghossian argues that this is a major defect. But: for one thing, as many philosophers of law will tell you, that is one of the ambiguities that is strategic to lawmaking, as it affords a legal culture the opportunity to deliberate on the moral, political, and common-sense features of a non-obvious question in the mereology of social ontology. (2) For another thing, he argues that genocide is meant to be a distinctive injustice as a matter of analytical fact. But we can reasonably question whether genocide is distinctively worse than cases of mass killings without being incoherent, which (for classical conceptual analysts) should be sufficient reason to dismiss the need to establish that genocide is a distinct moral wrong. I think it is enough to establish that it is a wrong somewhere at the top of the heap of moral wrongs.

That said, many of Boghossian’s points are worth consideration. He identified several cases that are ostensibly excluded, but which ought to be included:

• Stalin’s dekulakization was directed towards an economic class of ostensibly well-off peasants, the Kulaks, that resulted in millions of deaths by way of forced redistribution of essential goods necessary for life (a). This apparently does not count as genocide because “economic class” is not a protected group, (b). (For the sake of completeness, we might also include questions about whether or not it is targeting “as such”, as opposed to instrumentally targeting for the sake of collectivization.)
• He wonders whether or not the intention of exterminating part of a gender would count. (e.g., we might cite sex selection and infanticide in the developing world.)

He also considered some cases that ought to be excluded, but are mistakenly included:

• Egregious wartime episodes like the firebombing of Dresden or the bombing of Nagasaki, targeted nationalities as such, using atrocious means. But (Boghossian suggests) this is an awkward fit, since the episodes occurred during wartime. For him, these are not obvious cases of genocide, since it is at least plausible to say that they were targeted as a means to an end, the end being to end the war.

Ordinarily, this would be the place where I would argue for one or another categorization of the concept of genocide, such that these apparent exceptions are finessed into a rendering of a coherent whole, either decisively rejected as cases of genocide or decisively included.

But I will not do that. What I would prefer to do is examine the concept of genocide as a perspicuous region in conceptual space, following the methods in the previous post. Perhaps that will have to wait for a different installment.

**

*Her thesis has to be slightly complicated once you factor in G.W. Bush’s neo-conservative moralism when he argued in favor of the second invasion of Iraq in 2002 — but only slightly. History shows that that policy decision was driven by other factors — as I experience flashbacks to Condeleeza Rice’s “smoking gun mushroom cloud”, Colin Powell’s credibility-deflating testimony before the UN, and the bewilderment of the intelligence community reflected in the Downing Street Memo, and John Bolton’s ongoing impulse-control problems. Still, even if you grant that neo-conservatism certainly sold itself as a moralistic doctrine, it appears as a historical blip. And there is probably no surer evidence of this fact than Samantha Power herself was ousted from her position as representative to the UN during the crypto-isolationistic Trump administration.

The de se route to justifying prime face claims

There is quite a lot of utility in distinguishing prime facie and pro tanto reasons for action. It sure seems to many of us that philosophical or meta-ethical good sense to articulate ethical claims (including, come to that, duties) in terms of reasons. But if that’s true, then at least on face value, it would seem natural to also suppose that the magnitude of a claim (or duty) should track the magnitude of a reason, all other things equal.

So, for example, there is just plumb good sense in understanding minimally good reasons for action as ones that have “squatter’s rights” (to borrow a phrase from Graham & Horgan, itself borrowed from Owen Flanagan). The idea here is that a normative “stickiness” is intrinsic to pro tanto claims, and such claims have a default hold upon us that has to be positively displaced by another claim before it can be dismissed or outweighed. This property is somehow lacking for prime facie ethical claims — or, anyway, those prime facie claims that are not also pro tanto ones. For instance, ‘gratitude’ does not readily apply at all to the strict interpretation of the trolley problem, so it can’t be said to have a normative ‘stickiness’ in that context. It does not have squatter’s rights, since it is not even squatting.

When thinking about what it is that the prime facie ethical claims are lacking, my first temptation is to assimilate the idea of apparent (prime facie) reasons for action to de se reasons, i.e., the sort that are entertained in rational, relativistic judgments. For there are such things as relativistic rational judgments (e.g., in art). Hence, apparently, Youtube McCray’s opinion that The Last Jedi is a bad film may be reason for McCray to boycott it. It just isn’t a proper reason to boycott it (de re), because it does not direct my action in the slightest. It is just a reason-for-McCray (de se).* The upshot of this analysis is that merely apparent reasons for action are minimally good reasons for you, but not minimally good for everyone else (pro tanto & de se == prime facie & de re).

Does it work? Well, it seems like a viable characterization of our duties of self-improvement, which are certainly part of the Big Seven Topics that Ross cared about. As I mentioned previously, this was a major point of contention for Ross in his description of his project. So there is a useful sense in talking about merely apparent reasons in ordinary talk, if only to capture the common denominator of the Big Seven.

Does it make sense to say that all of Ross’s prime facie claims are de se reasons? Here is one reason to think not: some people would like to say that such relativistic (de se) reasons are not distinctively ethical, in the sense of commanding shared rational attention of particular (virtue-leaning) kinds of people. For example, Hume’s obtuse man who refuses to scratch his finger to save the world: while this might be a case of someone who has a prime facie reason in some amoral sense, it is not a prime facie ethical claim. And since Ross is interested in the objective parts of the moral situation, one might think any talk of objectivity precludes reference to relativistic (de se) reasons, since they sound suspiciously like subjective features of a situation. So a critic might allege that this talk about apparent reasons is so ethically defective as to be indefensible. My first inclinations, then, are seemingly off base.

*No such person exists. I would have used the more obvious empty name, “Youtube McGee”, except that it doesn’t rhyme with “de se”.

A prime facie what?

On the heels of the previous post, I have been wondering about what it would really take to be a prime facie duty. Ideally, an account should make it clear whether or not Ross has correctly identified the nature and usefulness of the familiar Big Seven topics (beneficence, non-maleficence, fidelity, etc.) by choosing ‘prime facie‘ as a label. And it is not an embarrassing question, given that Ross’s original remarks from The Right and The Good are provisional and apology-laden, so surely invite friendly re-evaluation (even if it must be confessed that one is not breaking new ground in thinking through a text that is almost a century old).

In my previous post I alleged that there is such a thing as a prime facie reason that is not minimally good (pro tanto). Some reasons are not, as a matter of fact, good reasons — they only seem to be good under some description. This is a point I have explored in other blogging (here and here). Now the question is whether any of those prime facie reasons are helpful in expressing the grounds upon which one might make a claim of responsibility over actions and events (to take up Brandon’s suggestion), and in that sense be worthy of being called ‘prime facie duties’.

The first obstacle is that Ross himself did not believe that he was describing a set of duties at all. The product is not as advertised:

I suggest ‘prima facie duty’ or ‘conditional duty’ as a brief way of referring to the characteristic (quite distinct from that of being a duty proper) which an act has, in virtue of being of a certain kind (e.g. the keeping of a promise), of being an act which would be a duty proper if it were not at the same time of another kind which is morally significant. Whether an act is a duty proper or actual duty depends on all the morally significant kinds it is an instance of. The phrase ‘prima facie duty’ must be apologized for, since (1) it suggests that what we are speaking of is a certain kind of duty, whereas it is in fact not a duty, but something related in a special way to duty. Strictly speaking, we want not a phrase in which duty is qualified by an adjective, but a separate noun.

I think we are obliged to flagrantly ignore Ross’s secondary suggestion of ‘conditional duty’ as a synonym for ‘prime facie duty’. For, given that Ross is at great pains to walk around eggshells when it comes to description of the idea of a ‘duty’, the phrase sounds very much like it is describing the same thing as a hypothetical imperative. And the connotation has consequences. For if you (like Philippa Foot) think that all of morality is a system of hypothetical imperatives, then it’s going to be hard to distinguish between prime facie duties and minimally good (pro tanto) reasons for action. His intent, of course, was to say that these are duties in context, but not duties as such. That would make them hypothetical principles which fall short of being imperatives. But you can’t untie a knot by adding new ones, so let’s just put the matter aside.

For Ross, prime facie duties are not duties. This is, of course, a needlessly paradoxical way of speaking, but it has some traction in ordinary language. Consider, by analogy, the fact that we currently describe the solar system in terms of ‘dwarf planets’ (Pluto, Eres, The Goblin) and ‘planets’ (Earth, Mars, etc.), but our terminology is not very good, because strictly speaking a dwarf planet is not a species of planet, but rather is a near-miss case. If we kept our lexical house in order, we should be calling Pluto and friends something else entirely — a planetelle, planetilly, planetaine, or whatever. So long as a distinction is made between bodies which have ordinary and extraordinary orbits around the sun, the label is not important. Similarly, Ross is telling us that the “prime facie duties” are not really duties, but strictly speaking are near-miss cases of duties, and if we knew what was good for us we would call them something else — claims, topics, grounds, or whatever. So long as the idea of an ethically probative reason is retained, the label can be left to future lexical housekeeping.

Instead, it seems best to adopt the phrase ‘prime facie claim‘. This option is explicitly rejected by Ross because he thinks a “claim” strongly implies sociality, and hence fails to describe claims one might make upon oneself. To me, however, this seems like a bad lexical choice. It is better to prefer the artificial to the positively misleading. And anyway I find nothing at all unintuitive or odd about the idea that one may make claims of oneself. Perhaps conventions have changed; my sense is that many contemporary philosophers (e.g., Lon Fuller) are willing to say that there are self-directed or agentic duties. We proceed, however, on the assumption that nothing will be lost in the new usage except a little verbal confusion.

Topical duties and the force of reasons

Over at Siris (a great blog), Brandon has a nice post on Ross’s “prime facie” duties. I’ve been thinking about Rossian pluralism for the last little while, so it caught my attention. I agree with much of the post, but also think I have a minor philosophical (not scholarly) quarrel with it. I confess it is a little nitpicky — to the point where I would ordinarily have just posted it over there in the form of a question. However, I can’t comment over there without using Discus, and Discus is either incompatible with Firefox or is otherwise cranky, so I’ll have to post my thoughts here. I’m sorry / you’re welcome.

For the sake of context, here is a brief summary of the post. Broadly speaking, Brandon’s argument seems to have three aims. First, he offers a few observations about the inadequacies of the label of “prime facie” duty, suggesting that we are better-off calling these topical duties (deontic topoi). Second, he suggests that the character of the duties are best understood as the kinds of reasons that are relevant when we assume responsibility over actions and situations. And, third, he suggests that the nature of the inter-relations of the duties is best understood when viewed in the context of the humanitarian tradition, concerned with medicine, apparently as opposed to (e.g.) law.

I agree with his first point entirely, and I love the second point. I am inclined to disagree with the third point, because it seems to me that privileging one relevant responsibility-bearing context over another might lead us to miss out on the most promising features of Ross’s contextual pluralism. But I will the main issues aside. My concern for the moment is with a footnoted remark he makes related to the second thesis, where he explores the relationship between topical duties and reasons.

Before I make a deep dive into the discussion, I will interpret the Latin qualifiers in the following way. ‘Prime facie‘ (preferred spelling, sorry) means ‘on the face of it’, ‘pro tanto‘ means ‘minimally good’, and ‘prime ultima‘ means ‘peremptory’ or ‘decisive’.

Here is the footnote (reposted in its entirety to give you a sense of its context, bolding added):

People have argued that Ross should have used ‘pro tanto‘ rather than ‘prima facie‘, but I don’t think this is any sort of improvement. ‘Prima facie duties’ at least has the merit of suggesting that they are not necessarily duties, which thus far is at least not wrong; ‘pro tanto duties’ suggests that they are partial duties, which is certainly not right. Nor does it help to switch to ‘pro tanto reasons’, because (while they would certainly be more accurately called ‘reasons’ than ‘duties’), they are not ‘pro tanto‘ as reasons; they are just reasons. At least, if we call them ‘pro tanto‘ they aren’t so in any sense that they don’t share with most of the things we call ‘reasons’.

Here is how I understand what is happening in this paragraph. In the unbolded passage, Brandon considers the possibility that we should examine topical duties in terms of pro tanto duties, and then dismisses that possibility as untenable. Which is fair enough; after all, in some contexts, some topical duties (e.g., gratitude) are just not relevant to the moral features of the situation. Then, in the bolded passage, he considers the possibility that topical duties are pro tanto reasons, and dismisses that claim. Which is almost fine — since, like him, I doubt that topical duties are themselves minimally good (pro tanto) reasons for action. To be very clear, I essentially agree with both claims. Ross’s topical duties are not straightforwardly described as pro tanto reasons, nor can they be understood as pro tanto duties.

What I am concerned with is the reason he uses to dismiss the ‘pro tanto reasons’ reading — he claims that topical duties “are not ‘pro tanto’ as reasons; they are just reasons“. I am not sure what this amounts to. In particular, I am concerned with the contrast between minimally good (pro tanto) reasons and reasons as such. It is natural, as either a reading or a misreading, to think that this passage is telling us that there is no reason to believe that topical duties provide minimally good reasons for action, in any sense that does not apply to all talk to reasons. That is to say, all reasons are minimally good reasons, in some sense, so adding ‘pro tanto’ in front of the name is not any help. Hopefully that is an accurate characterization of what Brandon had in mind, here. Anyway, let’s assume it is. Is it true?

I think not. While it is true that all reasons are presented under the guise of being good reasons, that does not imply that all reasons are in fact minimally good, in any sense that is usually at issue in reasons-talk in ethical contexts. For some reasons only seem to be good, but dissolve under scrutiny, as the weight against them overwhelms (or subverts!) their initial, first-blush appeal. Those, and only those, are worth being called prime facie reasons or duties.

So, for an example of a prime facie reason, take Hume’s obtuse rational man, who says “Let the whole world burn, for the sake of a scratch of my finger”. The reason to avoid a finger-prick is presented as good, and intelligible enough to understand Hume’s point, but it is not minimally good. For, as I see it, when presented out of context, “scratching my finger” is bad, and so avoiding that is a minimally good reason for me to act in a certain way. But when that same event is presented in the context of saving the world, it is not a minimally good reason. For persons of conscience, there is no rational contest, no agonizing over the relative weight of mid-level principles, where ‘avoid pricking your finger’ plays the role of a defeated contestant. In that context, it is mere ephemera. We call it a reason for action only because we want to understand the obtuse rational man’s claim, which includes understanding what is wrong with it.

I suggest that this Humean example is only a prime facie reason; I do not suggest it is a prime facie duty. My aim here has only been to offer reason to doubt that most of our talk about reasons are also about pro tanto reasons.

Women in philosophy in Canada

It is worth asking whether academic philosophy has made any progress in hiring women and non-binary gendered persons. While answers have to be cautious (since CPA data that has been collected on this matter since 1991 is incomplete), the trend seems to be movement in the right direction:

This data was collected by asking Departmental Chairs to report the gender breakdown of their faculty. For various reasons, our surveys ended in 2011, so the data comes to a halt at that point.

That led me to be curious as to how things are turning out in 2017. So, I went to every Canadian philosophy department website I know of, and found the demographic information using the totally non-scientific and fully unreliable method known as “counting heads”. The results can be found here. The result is that 72% of those on the tenure-track present as male, and 28% as female. Notably, the asymmetry is even more pronounced for lecturers and contract faculty, who are mostly male (80:20%).

Caveats:

• It is worth keeping in mind that the data collection techniques are incommensurable with previous ones; not all Chairs participated in previous iterations of the survey.
• Also worth noting that I canvassed a larger pool of universities and colleges than was done in the past.
• I did it quickly and gendered each person based on my judgment of how they presented. My French is also not as good as it was as a child, which possibly led to errors. If you see mistakes, let me know in the comments and I’ll update this post accordingly.

So, the face-value decline of women in the ranks may not necessarily reflect an actual decline. But if there is any progress, I would need to see evidence of it. From these numbers, I have to infer that the best case scenario is that things are stagnating.

Multi-Act Consequentialism?

I used to be a Mill-style utilitarian, and continue to admire many aspects of his moral philosophy. That said, the theory eventually seemed too logically messy for me to endorse. So I abandoned it maybe a little less than a decade ago.

I started to come back around to Millianism a few months ago after discovering Mendola’s (2006) “Multiple-act consequentialism” (MAC). Mendola points out that “act-consequentialism” usually refers only to individual actions, and makes no sense of group actions (or relegates such actions to the status of remoter effects). But once you admit that there are such things as group actions (as many now do), it follows that one and the same behavior can involve multiple actions: the one that proceeds the individual’s intention, and the ones that proceed from the group’s intentions. So a moral theory needs to have some kind of choice-procedure for weighing between the individual act and participation in the group.

But then you start to learn the details of Mendola’s choice-procedure. For Mendola, we might say that the right thing to do is to conform to group actions so long as the benefits of the group activity as a whole are greater than the individual benefits of defection. That is the theory.

Now suppose that you are a cop and discover corruption in your police department. Suppose also that if you rat on the corruption, you risk sending the department into chaos. Finally, suppose the status quo produces a lot of good — more good than would be achieved by defection alone. What do you do?

On first blush, MAC should ask us not to defect. But I do not see that as an especially compelling moral result. Not just because it is unintuitive, but because it violates an internally held conviction I have held for some time: when you’re in a no-win scenario, go with your integrity.

(To unpack that a little. If you’ve got any morals at all, you’ve got to try to make a better world — but along the way, you can’t undermine your capacity to choose to make a better world. This owes to the fact that there is no such thing as a ‘better world’ without people there to fight for it. Goodness is a property both ascribed and aspired, if it is anything at all.)

That is not to say that Mendola’s MAC cannot be defended. We might be engaged in still other group projects that might recommend snitching. Still, even if his choice-procedure did turn out to be a dud, I do like the idea of MAC. Though I am not for the moment sure that my parenthetical principles do it any justice.

Notes on J.J. Thomson’s “Normativity”

Reading Thomson’s ‘Normativity’. I have questions.

Consider the following statement:

[1.] I prefer watching ‘Game of Thrones’ over watching ‘Penny Dreadful’.

Many preferences originate in intuitions, and in that sense, begin their life as [1] or something like it. That’s fine, sort of, but there are better ways of talking about my preference. e.g.:

[2.] I prefer watching ‘Game of Thrones’ over watching ‘Penny Dreadful’, insofar as these are both good dark fantasy shows.

[3.] I prefer… insofar as these are the only good things on television right now.

[4.] I prefer… insofar as they are good dark fantasy shows considering what is on right now.

[5.] I prefer… insofar as their opening themes are good to dance to.

(Each of these involves a different kind of standard for evaluation, ranked roughly from least surprising to most surprising.) [2-5] are reflective preferences, not just intuited ones. Reflective preferences are different from intuited preferences because they are tagged with some evaluative standard by which one thing is to be ranked in relation to another. That standard is laid out after the phrase, ‘insofar as’. Which is more useful for a practical theory of decision-making, intuitive or reflective preferences? Well, taken on face value, the reflective references are more informative and in a sense more rational than [1].

But — not so fast: [2-5] are also potentially inconsistent with each other. So, e.g., maybe I dislike dark fantasy shows, but hate everything else on TV: in that case, [3] would be a false statement, but [2] and [4] would be true ones. And even if [2-4] were true, [5] could be false, just in case Penny Dreadful’s opening theme is actually better to dance to than Game of Thrones’s.

One way to resolve the question in favor of the reflective mode of articulating preferences is to say that each time you introduce a new standard of evaluation (i.e., whatever follows the “…insofar as…”), you’re actually making a brand new list, that is itself eventually broken down into intuited preferences. e.g.:

GOOD TO DANCE TO LIST

1. Penny Dreadful

2. Game of Thrones

3. Shakira

GOOD DARK FANTASY SHOWS

1. Game of Thrones

2. Penny Dreadful

3. True Blood

And then you can put these very lists on a global list of preferences that looks like this:

META-LIST

1. LIST OF GOOD DARK FANTASY SHOWS

2. LIST OF GOOD TO DANCE TO SHOWS

3. LIST OF USEFUL LIFE SKILLS

At that point, you will seemingly have given up on the intuited sense of [1], since Game of Thrones doesn’t just exist in some amorphous BETTER THAN relation to Penny Dreadful. Instead you’ll have replaced the intuited preference with something more rational and informative. Indeed, at this point, once we have all these standards of evaluation under our belt, it is tempting to say that [1] is not a rational claim about the state of my preferences at all. But that’s too quick, because [1] could just be an elliptical version of one of [2-5]. And so, one might say, it is only correct to say that [1] is not a rational claim about the state of my preferences at this point so long as there is there is no rational formula for picking out a more precise context of evaluation.

So, one might say that there is always a strict default context, in which we have to interpret sentences like [1] into their least surprising form, e.g., [2]. Will this work? I have my doubts. That is, intuitively, I doubt that charity alone will help us to identify some context-invariant mechanical *formula* that tells us what the most rational default interpretation should look like. I suspect that, at best, when confronted with intuitive preference-statements like [1], we only have *defeasible strategies for interpreting* it in terms of one or more of [2-5].

Moving on to (Chapter IV): “Suppose a person asks us, “Was St. Francis better than chocolate?” What can he mean? In what respect ‘better than’ does he mean to be asking whether St. Francis was better in that respect than chocolate? If he says, “No, no, what I am asking is not for a certain respect R whether St. Frances was better in respect R than chocolate. What I am asking is just whether St. Francis was (simply) better than chocolate,” then he hasn’t asked us any question, so it is no wonder we can’t answer it.” She suggests that there is a bifurcation between attributing simple superiority to something and attributing superiority in some respect.

I do not know why these are incompatible modes of evaluation. Saying that something is simply better than another thing does not seem to imply that there is no respect R in which an evaluation can be made. There are obviously salient respects in which one might compare the value of chocolate and St. Francis (say, when comparing the value of vulgar hedonism vs. asceticism). But when one says one is simply better than the other, they aren’t wiping these respects off the map, denying them up and down and sideways. Instead, it seems to imply that it is not rationally necessary to specify the respect R in the course of answering the question — that the respects are being left implicit and uncommitted. I think what she means to say is that it is meaningless to ask, “Is chocolate worse than St. Francis, given that there is no respect in which they might be compared?” But that’s kind of obvious.

Where does moral responsibility come from?

I am uncomfortable with the idea of moral responsibility. Not because I deny there is such a thing, or because I don’t know what it entails, but because I’m not sure where it comes from.

We might want to say that moral responsibility emerges naturally from the facts, and is not dependent upon our other moral convictions. So, moral responsibility is a kind of gloss on causal responsibility, which can itself be read off of the world, and which subsequently forms an indispensable part of a complete moral theory. If that were the case, we should expect non-confused convictions about the nature of responsibility to be relatively insensitive to the contents of normative moral doctrines. Evidence of its truth might be the fact (if it is a fact) that people really do think that responsibility has some important connection to agency, consciousness, and control.

Lately I have been teasing myself with another idea. Maybe the idea of moral responsibility plays no antecedent part in a moral theory at all — perhaps it is the output of such theories in practical application. If that were the case, we should expect our non-confused convictions about the nature of responsibility to be very sensitive to the contents of theory. Evidence of its truth might be the fact that utilitarians endorse a theory of responsibility that will be wildly at odds with a Williamsian theory of responsibility.

I suppose that another possibility is that the notion of responsibility is just a convention which contingently functions as an input to our moral theories, and which itself has no moral significance. That is a confused relativistic position that I find upsetting, but I suppose it’s possible.