Friday, October 10, 2014

Why moral education should involve moral philosophy

Ethics are increasingly a part of the school curriculum, and practical introductory classes in applied ethics are part of the training that nurses, scientists and soldiers undergo.

Ethical education is ubiquitous, even though it may not always involve complicated theoretical debates – but should it include a dose of philosophy? There are powerful reasons for looking to moral philosophy to learn about real-world ethical action – and of course, there are risks too.

Why we can’t do without moral philosophy
Moral education draws on the philosophical method. This method requires understanding concepts and distinctions, knowing what makes arguments valid, and attending to counter-arguments. Those skills are vital in the age-old business of moral argument, which involves considering moral principles, appealing to reasons, and comparing analogous cases. Because moral norms are not tangible or scientifically testable, we need conceptual clarity to avoid talking past each other. How can we tell that this is important? Look to the comments section of any article on social or political issues. You will find countless accusations that others cannot argue properly, that they misrepresent what their opponents are saying, or the selectively ignore relevant evidence.

As well, being philosophically consistent can prevent us from making exceptions for ourselves (a common form of hypocrisy).

But why is moral argument itself a good thing? Moral argument allows us to keep engaging with others even when we disagree about values. Values are not simply “given”, but can turn out to be amenable to reasoned discussion.

As well, moral philosophy also helps us question unhelpful assumptions and informs us about the ways our values connect to our descriptive beliefs, such as scientific hypotheses about human psychology.

Finally, notwithstanding all the endless debates – and some debates really have been going on for millennia – advances do occur. Natural rights theories were philosophical systems long before human rights laws protected people’s equal rights. Many would agree human rights constitute genuine moral progress. Moral philosophy stands as an enduring record of what we have learnt so far.

Moral philosophy empowers us through its method and substance to reflect upon and talk about challenging moral issues. Studying ethics can even propel a personal journey, where we learn about ourselves and the way we think. We might even learn that others think in different ways.

The risks
While moral philosophy offers great promise, it also harbors threats we need to be aware of.

Moral philosophy tends to focus on areas of disagreement. Applied ethics classes explore disputed issues such as abortion and euthanasia, rather than discussing the many issues on which we all agree. Furthermore, moral philosophy explores our reasons for being moral. But often we can agree on the right thing to do even when we disagree on the underlying principles. Jacques Maritain captured this theme during the drafting of the Universal Declaration of Human Rights, when he summed up the UNESCO philosophy group’s thoughts by saying: “Yes, we agree about the rights, but on condition no-one asks us why”.

The further we follow the trail of breadcrumbs into philosophical rabbit-warrens, the more morality threatens to become the domain of experts. Once we move from basic moral argument to high theory, philosophy becomes hard – an elite domain for those with the mental aptitude and the time to master the extensive knowledge required. When the philosophical going gets tough, those without this acquired expertise can easily feel out of their depth. For them, philosophical argument may seem as much a weapon of intimidation as a tool of mutual exploration.

There is another worry as well. Much moral philosophy involves studying comprehensive moral theories, such as those fashioned by Aristotle (virtue theory), Kant (deontology) and Mill (utilitarianism). Philosophers have good reasons to develop these complex systems. Theories provide systematic ways of explaining, describing and justifying moral action. Simply put, we cannot do moral philosophy without moral theories.

But full-blown philosophical theorizing harbors a darker side. Accepting one theory means rejecting all the others, and the unique insights they can offer. Further, because each theory’s advocates demand they have reason to believe their theory, they can become intolerant. They might demand that their arguments must be answered and (if not demonstrated as false) accepted. They can be tempted to conclude that all non-believers are unreasonable dogmatists. Worse still, sometimes courses can expose students to just one type of moral theory, without learning about other alternatives. Far from expanding those students’ moral horizons, exposure to high theory narrows them.

Where to?
If moral education needs moral philosophy, and moral philosophy needs high theory, how should we proceed? I offer just one suggestion.

Most moral theories build on a core insight. Utilitarianism tells us consequences for others’ wellbeing matter. Deontology stresses that morality requires each person accepting they are duty-bound to act in certain ways towards other people. Virtue theory reminds us that character drives action, and that ethical life carries its own rewards. These insights all provide valuable perspectives on the larger mosaic of human moral life. Moral education is at its best when it introduces students to these different perspectives, and their unique insights.

For ordinary people trying to think through practical moral questions, it is the insights (and not the theories) that matter most.

This blogpost (in a slightly altered form) was originally published in The Conversation:

Friday, August 8, 2014

Can human rights impose positive duties to act?

Here’s a perplexing question that eventually confronts almost everyone who thinks long enough and hard enough about human rights: Can human rights impose positive duties? Everyone of course agrees human rights impose negative duties, that is, duties to refrain from performing some action. The right to bodily security furnishes an example. Our right to be free from arbitrary assault prohibits duty-holders from physically attacking us. But what about positive duties? Can human rights bind duty-holders to perform positive acts to support, rescue or protect others?

We might view the question as important because ‘welfare rights’ require positive duties and contributions. If human rights cannot impose positive duties, then this pretty much rules out the possibility of rights to healthcare and education. But the question of positive duties still looms large if we restrict our attention to basic liberty rights. Reflect again on our human right to bodily security. We need to know whether this right guarantees us positive protection from assault (say, by imposing duties on others to contribute to police or peacekeeping forces), or whether it remains limited to just forbidding the assaults themselves. This philosophical question carries genuine real-world implications. If human rights commitments imply positive duties, then this will impact upon the duties that we think particular actors (such as peacekeepers and other international agents) should shoulder.

A moment earlier I characterized the question as perplexing. Why? Because like many philosophical conundrums, we can unearth impressive reasons on both sides of the argument. I’ve already hinted at some of them.

On the side of the advocate of positive duties we can marshal the alluring temptation of welfare rights. To many thinkers, the same reasons that justify duties to refrain from harming other people seem to present solid grounds for helping those people (at least sometimes). Return to the reasons put forward for liberty rights by John Locke or Robert Nozick, such advocates argue, and you will find equally good reasons for at least some welfare rights. Even setting aside welfare rights, many people agree a concern for human rights provides us with reasons to contribute to the basic institutions of justice that guard our classic rights of life, liberty and property. If everyone really deserves protection from arbitrary violence, then human rights must at least impel us to lift a finger to prevent such violence when we can easily do so.

All well and good, reply the opponents of positive duties. But there remains the small hurdle of explaining how we can even think of linking positive duties and human rights together. Even the most cursory examination of the most well-known and well-accepted human rights (such as liberty rights to bodily security) shows they impose universal, legally-binding duties. Scratch a little deeper we can unearth a host of other properties. For example, human rights-based duties are ‘directed’—owed from one determinate human being to another determinate human being. The duties are also ‘perfect’—they allow little discretion in where, when, how and towards who they are performed.

Why does this matter? It matters because positive duties seem to possess almost none of these key properties. It beggars belief to think that Amy’s right to healthcare (say) can be secured by legally-binding, directed, perfect duties universally imposed on all individuals.

Actually, the situation for positive duties is even worse than this. For sometimes there will be insufficient resources available to adequately fulfill Amy’s welfare rights, such as to healthcare. So how can Amy possibly have a right to something when absolutely no-one bears duties to hand over the resources that would secure that right? Maybe those others don’t even have those resources, or those resources are protected by their own (liberty or welfare) rights. A human right that cannot be fulfilled, declares the opponent of positive duties, hardly warrants the name. As theorists like Onora O’Neill contend, we debase the very notion of human rights when we attach it to such vacuous chimeras.

And so the arguments fly back and forth. Opponents of positive duties demand that rights-based duties must possess an array of vital properties (such as being legal, universal, directed, perfect and so on). Such properties, they declaim, constitute conceptually necessary ingredients of human rights moralities. Advocates of positive duties counter that such assertions amount to argument by sheer stipulation. Why should all rights-based duties be perfect, say, if it can be shown that imperfect duties can in some cases get the job done better?

How can we break this stalemate? One way forward is to get really clear about what we mean by ‘conceptually necessary’ when we say that it is conceptually necessary that a rights-based duty must possess a particular property. Some theorists seem to imply that the property is required by definition: so they mean that human rights by definition must correlate with perfect, legal duties. But this assertion will hardly persuade anyone, for each theorist of course adopts a different definition of human rights—and the ambiguity in the actual practice and discourse of human rights makes it impossible to rule in or out any given definition.

But there is another way conceiving ‘conceptually necessary’. Rights-based ways of thinking about political morality are different from other ethical perspectives, such as consequentialist or duty-based philosophies. Rights theories possess signature features that make them attractive in their own way. If removing a particular property from human-rights-based duties collapses the rights theory into a type of consequentialism, for example, then a signature attraction of the rights theory has been lost (because it becomes possible to sacrifice the one for the many).

This is the method I adopt in a just-published article in Political Studies, entitled ‘Positive Duties and HumanRights: Challenges, Opportunities and Conceptual Necessities’ (the article is available through ‘Online Open’, so if you’re interested you can download the final version through this link for free!).

In this article I describe exhaustively the properties of duties that correlate with apparently straightforward human rights. It turns out that things are surprisingly complex—a classic example of how ordinary and intuitive moral thinking winds up being really subtle and intricate when we try and precisely describe what is going on. Once we have a clear understanding of the properties of well-accepted rights-based duties, we can reflect on which of these duty-properties rights theories absolutely must retain if such theories are to maintain their hallmark features.

There’s no point denying it: it turns out that the answer to this question is pretty darn complex. (Heck, if it was straightforward someone else would have done it  already!) I argue duty-properties such as legality, perfection, directed-ness and universality turn out not to be essential to rights theories—but these duty-properties do link in various ways to deeper properties like ‘guarantees’, ‘fairness in duty allocation’ and ‘deontological structure’ that are essential. Losing these properties would sunder key attractions of human rights theories.

I won’t go into the full details here, but my investigation concludes that positive duties can accord with human rights. But this is not to say that anything goes. I argue that positive duties must be structured and developed in quite particular sorts of ways in order to possess the necessary duty-properties.

Of course, the debate will go on. Libertarians and others who disagree with welfare rights might find room to object to my arguments about which duty-properties are conceptually necessary. On the other hand, even thinkers who like the idea of welfare rights might wind up being a bit worried about where my argument leads us. For while I agree that even though human rights can impose multiple waves of duties to ensure the right is afforded proper protection (as rights-theorists like Jeremy Waldron and Henry Shue have previously advocated), I go on to argue that the stringency of such duties must diminish with each new wave of duties. That is, in order to retain a rights-theory’s signature properties, backup-duties to protect rights cannot be as strict as the duty held by the first-instance duty-bearer. If I’m right about this, then it might have significant consequences for certain types of rights-based duties (such as, perhaps, duties to refugees).

As I say, the debate will go on. One of the virtues of this article’s method, though, is that it lays bare exactly what types of duty-properties are in play, and provides reasons why we might judge some as vital and others as unnecessary. Rather than talking past one another in generalities and stipulations, this allows the philosophical debate to focus on the specific underlying duty-properties, and the reasons we must hold to (or alternatively can dispense with) each such property. For both proponents and opponents of human-rights-based positive duties, then, I hope that this way of proceeding provides a helpful way forward in unearthing the answer to this philosophical conundrum—a puzzle with very real practical implications for law and policy.

Wednesday, May 21, 2014

Of argument and ethics

How are argument and ethics linked? I’ve already touched on this question previously in the blog, exploring the relations between moral philosophy and actual ethical conduct. It’s clearly a question a lot of people like to think about: more people read that post than any other on this website!

Here, I want to consider a different way philosophy and ethics might intertwine, namely in the common ground between norms of argument and norms of ethics. The thought is this: Arguing well, in the philosophical sense, involves taking seriously what people say. Taking seriously what people say is one way of treating them with respect. As such, teaching people to argue well, and to do so naturally and instinctively, helps them act morally.

I first started to really consider this issue when I found myself mired in the Comments section of an online website. In my case, it was the academic-journalist website, The Conversation, but I think what I say will resonate with anyone who has waded into the to-and-fro of dialogue on just about any online discussion-board or comments section, or even on Facebook or Twitter, at least when the debate touches on moral and political views. If anything, we might suspect discussion on websites like The Conversation to be of a relatively high standard. Not only are the articles there written by academics, and so usually well-informed and bolstered with evidence, moderators patrol the comments section, and (to stymie anonymous trolling) everyone must use their real names.

Yet even with such measures in place, the standard of argument leaves much to be desired. I’m not speaking here of ‘trolls’, who just leave nasty comments to upset their victims, but rather about many ordinary people who (it seems to me) genuinely want to contribute to a discussion but succeed only in destroying it.

In my experience, once responders ascertain that a contribution (either the original article, or an earlier comment) maintains a position that differs from their own moral or political view, they will typically engage one or more of the following four modes of response (let’s call the contribution they are responding to ‘X’). Responders will tend to:
1.       Interpret X in the most extreme and unqualified way possible.
2.       Demand that implementing X would inevitably wind up creating a morally catastrophic situation, and that the author of X either endorses this outcome or recklessly fails to acknowledge its inevitability.
3.       Demand that the assertion of X must be driven by the most extreme and unpalatable moral principle imaginable.
4.       Demand that someone could only hold that moral principle if they were utterly evil, irrational, ignorant or ideologically duped.

Sometimes, opening with innocent-seeming phrases like ‘So basically you’re saying that…’, a single response can manage to work its way through all four modes of response. Such tactics, moreover, are not limited to one side or another of the political divide. Both progressive and conservative, left and right, employ them lavishly. The prevalence of these modes of response helps explain the oft-invoked Godwin’s Law: “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.” Response 1 can do this by implying X resembles some position or policy employed by the Nazis. Response 2 says implementing X would lead to Nazism; Response 3 says X’s underlying principle accords with Nazism, while Response 4 says that the reasons for accepting X’s underlying principle would be endorsed by Nazis.

Some readers will have immediately recognized various sorts of informal logic fallacies (slippery slope, ad hominem) in the modes of response listed above, but I think the root cause of them all is the ‘straw-person’ fallacy; namely, caricaturing an opponent’s position by interpreting what they have said, and their reasons for saying it, in the most uncharitable way possible. The straw-person fallacy works by entirely avoiding the actual argument that has been presented, and in its place erecting a quite new argument (the ‘straw-person’ or ‘straw-man’) that is much easier to defeat. Constructing a straw-person represents an improper maneuver according to the standards of philosophical argument because it is a non sequitur—it ‘does not follow’ from what the opponent has said. Rather than responding to the argument at hand, the straw-man comment responds to some other argument entirely. On a logical level, the straw-person-response at best proves irrelevant to the issue at hand. More usually however, it serves to distract attention away from the actual position someone has proposed, and makes it appear that the defeat of the caricatured argument represents a defeat of the proposed position itself.

So much establishes, I hope, that these four modes of response fail logically and philosophically. But are they also a moral failing? And even if they are, does this sort of moral failure really matter? Is it worth us worrying about?

I think the prevalence of such responses does matter: they fail to respect others with opposing views and they contribute to an unhealthy political environment.

First, these responses inflict an immediate harm. The original author who has been dealt with in this way normally either flees the discussion or retaliates angrily. Even if they respond constructively, trying to clarify their position, a second wave of the same straw-person-ing responses typically drives them into frustration. The four responses demean their victim, precluding the possibility that the author is a reasonable and reflective person who could make a contribution to the dialogue. Instead, the author retreats, wounded and insulted.

Such responses also (and this is the second worry) undermine the potential of these domains to play a genuine role in the participatory side of democracy—in people being exposed to and engaging with other citizens who hold opposing views. As well as sundering this potentially promising mode of democratic participation, straw-person responses can impact upon people’s overall judgments about political legitimacy. In a democracy, legitimacy hinges on accepting that we have reason to comply with democratically chosen policies and laws (except in extreme cases), even if we morally oppose them, voted against them and plan to vote against them in the future. The more we view our fellow citizens as reasonable people holding morally defensible views, the more we will apprehend democratic processes and legislation as legitimate, even if we remain personally opposed to any given result. However, the more we conceive all citizens who oppose us as rapacious ideologues, immune to constructive discussion, the less likely we are to endorse a democratic process where they hold a majority. And, naturally, by foreclosing all their attempts to engage in rational discussion with us, we enhance the possibility that they will see us in precisely this way: as ideologically-driven dogmatists incapable of rational thought.

(Of course, I can’t deny that sometimes one’s political opponents will really prove to be morally beyond the pale. It may turn out that their reasons for advancing some policy actually are intolerant, racist or totalitarian. But this judgment can only happen at the end of the discussion, not the beginning.)

If rampant straw-person-ing yields these morally worrisome impacts, then why do so many responders engage in it? And when the responders do it, why are their tactics so often endorsed by those who share their political allegiance? Do the responders think they actually have a chance of changing the original author’s mind by using these tactics? Surely not. If one wants to persuade someone of the errors of their view, then the necessary first step must be to engage with the author’s actual views, and not some other views. Scorning another person is probably the worst imaginable manner of changing that person's mind about something.

Indeed, I doubt these responses even have much to be said for them from a strategic viewpoint—that is, from the position of working out what will best promote the power and importance of one’s own faction’s agenda. In democracies, the best way of getting contested policy enacted is almost always to convince the center to change their mind—to bring over onto your side those precious swing voters in the middle. Taking seriously the views of those who oppose you is the crucial first step towards teasing out whether they possess extreme views on the topic, or hold a perspective not so different from your own. In contrast, using the above responses to treat moderate and centrist voters as if they hold extreme views simply pushes them from the center to the opposing extreme—exactly the last thing you would want to do if you really want to see some positive change made in the world.

I confess I do not know why the practice riddles online commentary. I could darkly speculate that the responders draw on these tactics unconsciously in order to cement a pleasing worldview where their opponents are obviously wrong and immoral. This makes for a neat world where they can wallow in self-righteous outrage at anyone who opposes them. But this is mere speculation on my part (and probably involves my own collapse into Response 4 above).

One other possibility, though, is that responders comment in these ways because they have never learned any other way. After all, we are not born knowing the norms of philosophical argument. It takes effort, patience, concentration and empathy to understand what a person is really saying, as distinct from what we presume they are likely to say. Such virtues can be difficult to muster when a person opposes our views, and the instinctual reaction is to defend ourselves.

If that is right, it underscores why teaching philosophy (especially in ‘critical reasoning’ and ‘informal logic’ courses and elements of courses) possesses real ethical value. In teaching the norms of argument in schools and universities, we provide learners with tools and instincts that allow them to do something that proves notoriously difficult to do: to genuinely listen to what people from other perspectives say, and to understand their reasons for saying it. True, giving people the tools to act rightly does not guarantee they will be motivated to do so, but it does at least open the possibility of their doing so. And often being empowered to act in a particular way, to live up to a particular standard (in this case of philosophical excellence), actually does count as a reason for behaving in that way.

And as Gibbs noted in his 2010 Moral Development and Reality, the capacity and practice of trying to see things from another person’s perspective, especially in the course of argument, yields impressive results in terms of moral development. Philosophy itself, done properly, makes us better people.

[This blogpost was originally published as an article in Australian Ethics, May 2014.]

Thursday, April 3, 2014

Racial vilification, free speech, 18C and John Stuart Mill’s On Liberty

What could a work, written a century and a half ago on the opposite side of the globe, discussing neither racism, vilification or human rights, hope to contribute to Australia’s debate about changes to its Racial Discrimination Act?
Quite a lot, I think.

Friends of free speech perennially invoke Mill’s most famous work, On Liberty, because its arguments call into question the wisdom of allowing feelings of offence to curtail vigorous debate, and because they invite us to reflect upon what happens to opinions and individuals silenced by the state.

Our shared temptation to silence the wrong and immoral

Mill cautions us about using our feelings of moral offence and outrage as reasons to stifle other’s thought and action.

“The disposition of mankind, whether as rulers or as fellow citizens, to impose their own opinions and inclinations as a rule of conduct on others is so energetically supported by some of the best and by some of the worst feelings incident to human nature that it is hardly ever kept under restraint by anything but want of power...”

We are all of us tempted, Mill observed, to wield the power of the law to ensure others acquiesce to our desires about what they can do and say. Allowing feelings of offence to trigger legal prohibitions amounts to doing just this. But a pluralistic society, populated by diverse individuals, houses many different perspectives, all with different views on what must be held sacred. Such differences inevitably result in feelings of offence when others fail to respect what we hold dear. As a result, offence-giving is a natural part of a genuinely pluralist society. To suppress offence amounts to suppressing diversity.  

In his defence of diversity and individuality, Mill argued a pluralist society would need to draw a strong distinction between moral condemnation and legal prohibitions. Responses of moral condemnation and outrage must be protected—these follow from listener’s own liberties of thought and speech. I am free to be appalled by what you say—and to voice my shock. But all sides in a diverse society need to resist calling on the law to coercively prohibit immoral actions, and immoral speech in particular, lest they stifle others’ diversity, feed their own intolerance and their belief that their certainty counts as absolute certainty, and—in the final analysis—license the use of a weapon they might eventually have turned back upon themselves.

Silencing an opinion does not make it disappear

Mills’ signature contribution to free speech debates lies in asking us to seriously consider what happens to the opinion and the person silenced by the state. Consider a speaker who wants to express an opinion about some matter of public policy or interest, but is silenced by the force of the law. Let’s call our speaker here, ‘Chitra’ (the name might help remind us that the law, in its infinite majesty, does not only silence (powerful, influential, popular) members of the majority, but all speakers, including those who may be disadvantaged, marginalized or vulnerable in their own ways).First and foremost, Mill stressed, we need to remember that silencing Chitra’s opinion does not make her opinion, or any of the reasons she had for believing it, disappear. The state merely uses the force of law to stop Chitra publicly giving voice to what she is already thinking.

Two possibilities result. First, and most likely, Chitra holds firm to her opinion. After all, she has not been presented with any reasons to change her mind. Chitra has not heard the arguments that could be voiced in response to it—arguments coming from those who have different and perhaps more informed perspectives on the matter, and perhaps even arguments coming from those who Chitra respects. As such, her opinion remains, and it festers. Chitra whispers it only to confidants and perhaps even bears it with a secret pride as a badge of her free-thinking ways. She cannot voice her unlawful view publically, but its presence can still leak out in other ways—such as when she enters the privacy of the ballot box.

Alternatively, Chitra might change her mind. But she does not change her mind because she has been presented with reasons bearing directly on the reasonableness of her opinion. To the contrary, Chitra cannot be confronted with such reasons until she is allowed to voice the opinion, as strongly and doggedly as she can, and lay down her specific reasons for holding it. Instead, she changes her mind purely on the basis of the state’s authoritative say-so. She acquiesces that her thoughts are so repugnant society cannot abide their being spoken—though she cannot apprehend why this is so, or where the error in her thinking lies. Mill asks whether we really desire this result—whether we wanted to stifle Chitra’s integrity of character and the confidence to follow her own train of thought. For Chitra’s mind has not been persuaded. It has been pacified, tamed, subdued.

Mill also asks us to think about Chitra’s opinion itself, and whether society in general wouldn’t be better served having such opinions aired, rather than suppressed. Even if Chitra cannot be convinced of her errors, third parties witnessing her spirited defence of the opinion, and others’ spirited attacks on it, can judge for themselves, satisfied they have heard both sides of the story. Indeed, even those welded to the view that Chitra attacks can benefit from being confronted with her arguments. “He who knows only his own side of the case,” Mill argued, “knows little of that.” Chitra’s opponents learn more about their own view, and must search out and reflect on the most important reasons for their holding it, as they publicly refute her stance. Whether Chitra’s deviant view proves correct, partly correct, mostly false or even demonstrably false, Mill contends, society gains by hearing it and appreciating the responses marshalled against it.

Australia in the 21st Century

All that said, you might yet wonder whether any of this really bears on Australia’s debate on Sections 18C and 18D of its Racial Discrimination Act? After all, Mill focuses on the presentation of genuinely held opinions, not acts of direct vilification and intentional harm. Indeed, we might wonder how Mill himself would respond if we stressed that many minorities support the existing law. Far from entrenching his feared ‘tyranny of the majority’, minorities largely welcome the law and its protections. And we might wonder, too, if Mill would reconsider if we impressed upon him the genocidal horrors wrought by racism throughout the Twentieth Century, and the legacy of racist oppression still infecting our societies today.

I suspect Mill would be sympathetic to these concerns, but remain cautious about the extent to which we should see them reflected in law. (I suspect the author of The Subjection of Women would also wonder why sexual discrimination was not equally prohibited.) With Mill’s arguments in mind, several specific councils to the contemporary debate about Sections 18C and 18D of the Act rear their heads.

First, despite all the harms of racism noted above, we still have reason to be careful about opening this door and incorporating subjective feelings of offence into the laws’ operation. (18C at present does this by requiring an objective test about subjective feelings: it asks whether the act is reasonably likely to offend another person or group.) Human nature tempts every one of us to use the law to make others behave as we morally want, with unavoidable risks to freedom and diversity. We must bear in mind that genuine tolerance requires more than respecting difference: it requires respecting differences we hate—differences we think we should hate.

Second, we must be honest about the free speech costs of such laws. Let’s grant that in the starkest cases of vilification (such as all-too-commonly witnessed at football grounds and on public transport), where the speaker directly addresses his victim, he does not intend to assert an opinion, and aims only at immediately harming another person. Stifling such speech carries few free-speech costs in Mill’s terms. But many other opinions can be aired in political and social discussions that bitingly offend certain groups, and yet are genuinely believed and voiced as opinions worthy of consideration. If we opt for suppression, then we must not pretend there are no free-speech issues at stake.

Third, if we must limit speech, let’s do it as surgically as possible, and ensure the general citizenry know exactly where the specific limitations lie. Consider two potential limitations on speech. A first limitation would prohibit only speech aimed to offend—that is, speech deliberately addressed to, and plainly aiming to denigrate, the victim. These are arguably the worst and paradigm cases of vilification, and in these situations the speaker aims to wound, not to offer an opinion.

A second limitation on speech, less surgically but still topically, would prohibit an objective type of offence-giving, rather than a subjective measure of whether a group feels offended. For example, we could protect people from hate speech by prohibiting any speech that asserts the mental or moral inferiority of those of another race (or nationality, ethnicity) or claims such people should be hated or scorned. Such a prohibition would protect people from racist speech, but not from race-related offence.

Now strictly speaking, Mill’s worries about silencing opinions apply even to cases where we are absolutely certain about the wrongness of the opinion we aim to silence. But categorically racist claims impact so heavily on people still suffering from current and historical racism, that even a modern-day Millean might accede to their prohibition. After all, and despite Mill’s falliablism, the overwhelming majority of us really are absolutely certain that claims of racial superiority are utterly false and beyond the pale. It’s not that such claims put forward a perverse moral view—it’s that it’s hard to see how the view counts moral as all. It fails what is sometimes called the ‘basic moral perspective’, which involves taking a position of impartiality regarding oneself and others. Can one really be said to be contributing to public discourse if one rejects the basic moral perspective that furnishes the starting point and ground of public discourse itself?

However: we possess no similar time-tried consensus about other claims regarding race—such as who should or should not belong in a particular category, for example, or whether we should employ these categories at all (questions lying at the heart of the Eatock v. Bolt case that precipitated the change in legislation). One does not have to be beyond the moral pale to wonder about the purposes of these categories and their proper extension, especially when state policies employ these categories to distribute resources and opportunities. No doubt, people will be outraged when others argue the merits of whether they belong in one category or another. Such discussions cut to the very quick of people’s identities and self-understanding. The feelings of offence they experience are entirely legitimate. But the presence of such offence cannot budge the fact that different people possess different opinions about such categories and their proper boundaries and purposes. Silencing debate on these questions ultimately serves nobody’s purpose. (Consider the debate on gay marriage—should the current community of married persons wield absolute control over the definition of ‘married’ and who counts as ‘married’? Surely not. The debate on gay marriage impacts upon people’s identities and the social understanding of their relationships—but that is no reason to stifle the debate itself.)

What’s the upshot of all this? Namely, that legitimate debate needs to be protected even when we can predict that it will cause race-related offence (even understandable and reasonable offence). We should resist allowing subjective feelings of race-related offence to prohibit such debate.

Different sorts of offensive, racist and race-related speech
What does this mean in practical terms? Several different sorts of speech acts concern us here.

Case 1. Direct vilification: Direct vilification occurs where, a) the speaker effectively asserts that one race, colour, nation etc is by its very nature worthy of hatred, scorn or paternalistic treatment; b) there is no evidence the speaker aims to inject an opinion into a political or social debate, rather than to merely wound another; and c) the speaker actively ensures the delivery of the message to its intended target (by email, or as an online comment directed to them, e.g., or by actual physical presence). News reports regularly draw public attention to direct vilification occurring on public transport and at football grounds.

Case 2. Hate speech: Hate speech happens when the speaker effectively asserts that one race, colour, nation etc is by its very nature worthy of hatred, scorn or paternalistic treatment. But such hate speech does not amount to direct vilification because it occurs as part of a genuine debate or political standpoint (for example at a rally, march or in a publication or blog). Consider the KKK or neo-Nazis having a public rally.

Case 3. Offence taken on racial grounds (but not by reason of racism itself): In this case someone says something that offends reasonable members of a particular racial group. However, the statement does not assert (nor even imply) that the group is inherently morally inferior in any way—the statement gives offence for other reasons.

Case 3.a: Calling into question whether a person counts as a ‘genuine’ Aborigine (or ‘Australian’, or ‘black’) provides an instance of Case 3. This is the category that snared Andrew Bolt in Eatock v. Bolt. He accused certain pale-skinned people of categorizing themselves as Aboriginal in order to enhance their employment prospects. Such an accusation was bound to be offensive to the people targeted—and would doubtless have remained offensive even if it had not been possible (as it was in the event) to prove the falsity of Bolt’s specific accusations through examination of those people’s histories. But Bolt’s claims were not offensive because they constituted or implied racism or hate speech. His accusation is quite intelligible even if all racial groups are completely equal in moral status and respect. As such, Bolt’s accusation does not present as an instance of Case 2, but of Case 3: speech giving rise to reasonable, race-related offence.

Case 3.b: Holocaust denial provides another instance of Case 3. Denying the occurrence of a well-documented historical event of profound significance to a given people, ethnicity or race will doubtless provoke offence and outrage by that group. In my experience at least, Holocaust-denial seem almost always to be driven by genuinely racist or anti-Semitic beliefs. But the denial itself need involve no assertion of racial inferiority or hatred, so legislation prohibiting objective racism and hate speech (i.e. legislation targeting Case 2) will not prohibit it.

The Millean arguments supplied above provide little reason, so far as I can see, for resisting prohibitions on Direct Vilification (Case 1). Direct vilification adds nothing to public debate, and intrinsically aims to wound its victims. 

The Millean arguments do provide reason for being cautious about prohibiting Hate Speech (Case 2), as people can genuinely offer these views as inputs into the public discourse, and suppressing their views will hardly make such opinions disappear. However, the harm caused by such speech and its denial of the basic moral perspective arguably outweighs these countervailing considerations.

However, I think someone persuaded by Mill’s arguments must fundamentally reject any attempts to prohibit race-related offence as it appears in Case 3.a. Prohibiting such offence amounts to suppressing reasonable pluralism and the public contestation of standing political policies. Combatting offensive views here must be done through opposing speeches, not legal suppression.

I confess I remain unsure about cases like Case 3.b. Arguably, a legislative act could require certain minimal levels of good faith for any acts causing race-related offence, where ‘good faith’ implies, (a) that the speaker genuinely holds the views espoused; and (b) that their views accord with minimal standards for evidence and fact-checking, in accordance with community standards for accuracy in the context in which they are spoken. (Note that this was not the way ‘good faith’ was interpreted by the judge in Eatock v. Bolt.) The thought here is that complete detachment from evidence and logic may be countenanced in flippant comments online, for example, but that the community requires increasingly higher standards of accuracy in professional blogs, public speeches, opinion-pieces and journalistic reports. Since blithely denying the Holocaust amounts to complete disregard for well-known and well-documented evidence, such denial would be prohibited in these latter cases. While I think Mill would resist even these prohibitions (and I worry about them too), at least it can be said in their defence that the process of a finding of guilt would centre on the available and objective evidence for the falsity of the speaker’s view. Hence the legal process holds at least some hope for convincing the person of their error, rather than merely taming their mind into submission to the orthodox view.

Draft Amendments to the Racial Discrimination Act 

The Attorney-General’s Department released draft amendments to the Act on the 25th March 2014. As I read them, in the context of the above discussion, they would (rightly) prohibit Case 1: Direct vilification. Worryingly, though, the draft section would only prohibit direct vilification that incites hatred or causes fear. The section will not explicitly prohibit directly castigating someone as being morally or mentally inferior on the basis of their race.

More generally, because the section will not apply to public discussion, it seems to me it will allow not only both instances of Case 3, but also instances of Case 2: of flagrantly racist hate speech that is put forward in context of public discussion. The draft amendments thus take a very strong stance on free speech (stronger, indeed, than I have set out above).

I think even friends of free speech should worry that this amendment swings the pendulum too far in favor of free speech. My reading (and it is just my reading) of the broad position of the majority of Australians on the matter is that they think Case 1 Direct Vilification and Case 2: Hate speech must be prohibited. Most of them, I think, also harbor sympathy for prohibiting Case 3a: Holocaust denial.

If the amendment were legislated as drafted, I think widespread popular sentiment would mount against it, and whenever the opposition Labour Party next get into power, we can almost guarantee it would be repealed. Its replacement would probably be the restatement of the original act, which prohibits 3a, giving race-related offence. If what I have said above is on the right track, then the friend of Millean free speech will be concerned above all to protect speech of Case 3a. The best way to secure this protection in the long term seems to me to be to draft legislation that protects Case 3a, prohibits Case 1 and Case 2, and allows a nuanced position on Case 3b. In other words, direct vilification and hate speech must be prohibited, while speech giving subjective race-related offence must be protected, perhaps with a proviso that such speech lives up to certain minimal standards of fact-checking, appropriate to the context in which it is uttered.

Friday, February 14, 2014

There is no political morality

This might seem a strange title for a blogpost written by a political philosopher, especially one that tends to harp on about the importance of human rights. Am I trying to put myself out of business? What on earth could I mean?

What I'm suggesting is that the only real, binding principles (rules, virtues etc) we possess are moral ones, governing how each person should treat each other. I’m suggesting we should resist believing that independent, new moral principles emerge once we start thinking about the domain of political authority and political community. Of course, I agree lots of political principles remain immensely important—the separation of powers, the rule of law, democracy, rights and so on. I doubt, though, that any of these principles enjoy their own independent moral validity. Rather, I think these principles draw their justification from pre-existing moral principles—the same moral principles governing how you and I should treat each other in general, including if we met on a desert island. We wind up with the rule of law, rights, checks and balances, and all the rest because these principles reflect our ordinary moral duties and entitlements writ larger, and shaped out of the capacities and the threats of these political institutions.

What's the big deal?
‘So what?’ you ask. I think denying political morality matters because so many people throughout history believe in it. They hold that political morality exists as an independent entity. It is autonomous. By ‘autonomous’ I mean political morality inhabits a normative realm unto itself. It cannot be derived from ordinary personal morality. Funnily enough, people who believe this still tend to agree about all the ordinary, interpersonal moral principles. They agree we should not lie or cheat, harm or kill; we should not seize more than a fair share of things we have not created; we should help others in need. And so on. But once we come together as a political community, now, they think, entirely new ways of governing our lives should rule! Now we can rethink everything! Now we are empowered to come together as distinct parts of a single organic unit, a magnificent polis or grand nation-state! Or we must all now start following and drawing our law from exactly the same religion or from some community-constructed ‘form of life’! Or (a present fashion) now we can start living by entirely new and deeper principles of equality, seeing every material difference between us as crying out for justification! Or (another present fashion) at last we can cast off our chains and start upholding stringent notions of absolute human freedom!

Practically no-one would advance these principles as ordinary rules of basic morality—as all of them effectively amount to using violence against people who are for the most part minding their own business and may well be upstanding and hardworking members of their local community. No-one would imagine that Alf should convert his neighbour Betty at the point of a sword, or force her to conform to some way of life he and his friends think constitutes objective happiness, or cut her down to his level when she prospers. But once we come together in a state, all this changes, and all these things are now possible: we effortlessly and unthinkingly adopt new political principles justifying all this and more.

So this is what I am arguing against: any autonomous political morality that puts forward new principles of justice that we would not propose as part of ordinary interpersonal morality.

John Locke’s ‘State of Nature’
I think this rejection of independent political morality helps us understand the views of the seventeenth century liberal philosopher John Locke and the way he uses the ‘State of Nature’. Effectively, Locke’s state of nature amounts to nothing more than ordinary people governed by ordinary morality. We all respect each other’s rights; we tolerate their religious practices; we make sure we don’t take up so much of the local resources that others don’t have their own resources to work on; we acknowledge that needy people in tough situations need help; and so on. And we never use violence—unless someone has breached one of these rules against us, in which case we may strike back and defend our rights. Sometimes theorists speak as if Locke’s state of nature must be anti-social, pre-social or pre-institutional. I suspect this view arises not so much from a misreading of Locke as from a failure to read him at all. To the contrary, in Locke’s state of nature we all live in communities, we travel, we trade, we build families and churches. We’re not perfect, of course. But almost all of us share a solid understanding of what the right thing to do is, and more often than not we do it.

Locke’s state of nature differs dramatically from that of his fellow seventeenth century political theorist, Thomas Hobbes. In Hobbes’ state of nature, no-one accepts any moral rules. Trapped in Hobbes’ brutal state of nature, fearful for my own security and unbound by laws, Hobbes recommends I strike at my neighbours before they can strike at me, and his state of nature collapses into the war of all against all. And this collapse renders the life of man, in words that echoed down through the centuries, ‘solitary, poor, nasty, brutish and short’.

In comparison, Locke’s state of nature sounds pretty idyllic, right? 


In technical philosophical terms, Locke’s state of nature sucks. Why? Because its members acknowledge no settled and known law, they lack an agreed person to adjudicate when violations to the law occur, and they possess no accepted authorities to exact punishment or ensure compensation for wrongs done. Even if most of a community’s members really try to do the right thing most of the time, conflicts routinely erupt and foment further conflicts in turn. Each of us has the power to be judges in our own cases, exacting punishment as we see fit, with predictable enough results. Each person sees themselves as performing just retribution and compensation. Everyone else sees them hell-bent on revenge and theft. We didn’t start where Hobbes thought we did—but, on Locke’s telling, we sure do finish there.

Still, humans often rise to the level of creative, problem-solving creatures. Can’t they fix things? Hobbes and Locke both thought they could. However, because Hobbes thought humans were so selfish and bereft of human virtue, he thought they needed a radical solution to the state of nature. They needed to hand over almost all their rights to a supreme political sovereign, who would wield enough absolute power to keep them all in check. So far as any morality enters into Hobbes’ scheme, it enters here. The violence of the state of nature horrifies the people so much that they create morality to defend against it. So Hobbes’ position turns out to be the exact opposite of Locke’s. For Hobbes, people possess no ordinary everyday morality, only political morality.

Locke’s people in the state of nature suffer the same threat of violence, but here’s the good news: they have more to work with than Hobbes’s warmongers. They don’t need to invent morality—they already possess it. And while things would be improved if there were settled and reliable punishments for doing the wrong thing, they don’t need fear of punishment to do all the work in driving their moral action. They already possess the capacity for virtue and decency. Their problems are alarming, yes, but rather specific for all that. They just need to get together, in a good faith and an amicable way, and work out ways of setting down stable laws, coming up with independent judges to adjudicate on them, and on a police force and army that will execute them. I mean execute the laws, that is. The people must remain vigilant not to make a police and army that executes them, the people. That would just swap the problem of local internecine violence for the problem of systematic slaughter and oppression. That problem may not have worried Hobbes (seriously, what was he thinking?), but it worried Locke; and rightly so.

So what’s the result? The citizens come together and create institutions to fix their problems. They create democracy, the rule of law, rights and the separation of powers. They don’t do this because they came to any profound moral realizations about new ethical principles that must suddenly apply because they have joined together into one political community. To the contrary, they craft these new political principles because given empirical descriptive facts about humans, power and institutions, practices like democracy and the rule of law prove necessary to realise the original moral principles they all held in the state of nature.
So that’s what I mean when I say there exists no political morality independent of ordinary morality. We derive all of our political principles from our pre-existing moral ones. I don’t pretend this will prove an easy or straightforward process. In fact it poses a raft of challenges. Instead of invoking some abstract political theory—some exciting new contract theory from an original position, for example—we have to slowly learn, through trial-and-error as much as theory, about how institutions and practices both protect and threaten the common-sense rights we held in the state of nature.

Why believe it?
But why believe this idea about the non-reality of political morality? Here are four quick reasons. One, we find much less disagreement about what ordinary common-sense morality requires, as compared with political principles. Lots of moral theorists suggest that there are striking similarities across cultures regarding proper treatment of one’s fellows. Now maybe you think this is taking it a bit far, but no-one would even pretend to make the same claim about political morality. For when it comes to what a political regime should do, theories and practices clash violently. If we can get by without provoking all these disagreements by relying on an area of moral thinking where we find more substantial agreement, then that seems a welcome result.

Second, if we want peace and prosperity to reign, then people need to comply with and support the laws and institutions governing them. If the community-members recognize that the coercive institutions governing them ensure that they perform duties they readily acknowledge as morally required, then their own moral emotions, habits-of-life and ways of thinking bulwark those institutions. For example, they contribute to institutions to help the needy because they can all imagine small-scale situations (children drowning in ponds, for example) where they would be duty-bound to help nearby people in desperate need. While people can agree to exacting political principles in the abstract, in my experience this is never accompanied by a revolution in their moral psychology and habits of life. Divesting ourselves of autonomous political morality helps forge a match between our moral emotions and what the institutions around us are trying to do.

Three, this theory accords with many intuitions I think we might share regarding political institutions and their legitimacy. If trying to create ordinary morality on a political scale led to lots of crazy results, then that would be a reason to doubt what I am saying. But instead we can move—as Locke himself described—from the dictates of ordinary morality to show how their institutional implementation gives rise to many of our most prized political institutions and principles, including democracy, rule of law, separation of church and state, toleration, separation of powers and so on. In other words, from a concern with ordinary morality we arrive at a decent picture of political morality, upholding many of the most important institutions of western democracies, and sitting neither to the extreme left or right of the political spectrum.

Four: Ockham’s razor. If we can derive a decent theory of political morality from ordinary morality, then why complicate matters by appealing to something altogether new? The simplest solution appeals to as few elements as possible, using one set of (moral) principles to explain a different set of (political) principles.


Of course, I can’t pretend to have said everything that needs to be said to vindicate my position, or even to fully explain how it works in practice. But I hope I have done enough to open your eyes to the possibility of a distinct way of thinking about political morality—namely, that it doesn’t exist in its own right! If I am correct—and if thinkers like Locke were correct—then we build political morality from the scaffold of ordinary interpersonal morality.