Let's Debate Affirmative Action

   Cheryl Hopwood did not come from an affluent family. Raised by a single mother, she worked her way through high school, community college, and California State University at Sacramento. She then moved to Texas and applied to the University of Texas Law School, the best law school in the state and one of the leading law schools in the country. Although Hopwood had compiled a grade point average of 3.8 and did reasonably well on the law school admissions test (scoring in the 83rd percentile), she was not admitted. 
   Hopwood, who is white, thought her rejection was unfair. Some of the applicants admitted instead of her were African American and Mexican American students who had lower college grades and LSAT scores than she did. The school had an affirmative action policy that gave preference to minority applicants. In fact, all of the minority students with grades and LSAT scores comparable to Hopwood's had been admitted.
   Hopwood took her case to federal court, arguing that she was a victim of discrimination. The university replied that part of the law school's mission was to increase the racial and ethnic diversity of the Texas legal profession, including not only law firms, but also the state legislature and the courts. "Law in a civil society depends overwhelmingly on the willingness of society to accept its judgment," said Michael Sharlot, dean of the law school. "It becomes harder to achieve that if we don't see members of all groups playing roles in the administration of justice." In Texas, African Americans and Mexican Americans make up 40 percent of the population, but a far smaller proportion of the legal profession. When Hopwood applied, the University of Texas law school used an affirmative action admissions policy that aimed at enrolling about 15 percent of the class from among minority applicants.
   In order to achieve this goal, the university set lower admissions standards for minority applicants than for nonminority applicants. University officials argued, however, that all of the minority students who were admitted were qualified to do the work, almost all succeeded in graduating from law school and passing the bar exam. But that was small comfort to Hopwood, who believed she'd been treated unfairly, and should have been admitted.

   Hopwood's challenge to affirmative action was not the first to find its way to court, nor would it be the last. For over three decades, the courts have wrestled with the hard moral and legal questions posed by affirmative action. In 1978, in the Bakke case, the U.S. Supreme Court narrowly upheld an affirmative action admissions policy of the medical school at University of California at Davis. In 2003, a closely divided Supreme Court ruled that race could be used as a factor in admissions in a case involving the University of Michigan Law School. Meanwhile, voters in California, Washington, and Michigan have recently enacted ballot initiatives to ban racial preferences in public education and employment.
   The question for the courts is whether affirmative action hiring and admissions policies violate the U.S. Constitution's guarantee of equal protection of the laws. But that gets a tad technical, so let's set it aside and focus directly on the moral question : Is it unjust to consider race and ethnicity as factors in hiring or university admissions ? 
   To answer this question, let's consider three reasons that proponents of affirmative action offer for taking race and ethnicity into account : correcting for bias in standardized tests, compensating for past wrongs, and promoting diversity. 

               CORRECTING FOR THE TESTING GAP 

   One reason for taking race and ethnicity into account is to correct for possible bias in standardized tests. The ability of the SAT (Scholastic Aptitude Test) and other such tests to predict academic and career success has long been disputed. In 1951, an applicant to the doctoral program in the School of Religion at Boston University presented mediocre scores on the GRE (Graduate Record Exam) . The young Martin Luther King, Jr., who would become one of the greatest orators in American history, scored below average in verbal aptitude. Fortunately, he was admitted anyway. 
   Some studies show that black and Hispanic students on the whole score lower than white students on standardized tests, even adjusting for economic class. But whatever the cause of the testing gap, using standardized tests to predict academic success requires interpreting the scores in light of students' family, social, cultural, and educational backgrounds. A 700 SAT score from a student who attended poor public schools in the South Bronx means more than the same score for a graduate of an elite private school on the Upper East Side of Manhattan. But assessing test scores in light of students' racial, ethnic, and economic backgrounds does not challenge the notion that colleges and universities should admit those students with the greatest academic promise ; it is simply an attempt to find the most accurate measure of each individual's academic promise. 
   The real affirmative action debate is about two other rationales--the compensatory argument and the diversity argument. 

                COMPENSATING FOR PAST WRONGS

The compensatory argument views affirmative action as a remedy for past wrongs. It says minority students should be given preference to make up for a history of discrimination that has placed them at an unfair disadvantage. This argument treats admission primarily as a benefit to the recipient and seeks to distribute the benefit in a way that compensates for past injustice and its lingering effects. 
   But the compensatory argument runs into a tough challenge : critics point out that those who benefit are not necessarily those who have suffered, and those who pay the compensation are seldom those responsible for the wrongs being rectified. Mant beneficiaries of affirmative action are middle-class minority students who did not suffer the the hardships that afflict young African American and Hispanics from the inner city. Why should an African American student from an affluent Houston suburb get an edge over Cheryl Hopwood, who may actually have faced a tougher economic struggle ?
   If the point is to help the disadvantaged, critics argue, affirmative action should be based on class, not race. And if racial preferences are intended to compensate for the historic injustice of slavery and segregation, how can it be fair to exact that compensation from people such as Hopwood, who played no part in perpetuating the injustice ?
   Whether the compensatory case for affirmative action can answer this objection depends on the difficult concept of collective responsibility : Can we ever have a moral responsibility to redress wrongs committed by a previous generation ? To answer this question, we need to know more about how moral obligations arise. Do we incur obligations only as individuals, or do some obligations claim us as members of communities with historic identities ? We'll discuss this in greater detail later, so I'll set it aside for now. 
   
   

John Rawls---continued

      We left off with the discussion of the salary differential between Chief Justice John Roberts and Judge Judy, and between the average schoolteacher and David Letterman, and made the observation that David and Judy were lucky they lived in a society that loves TV stars. Moving right along ------

   The successful often overlook the contingency of luck as an aspect of their success. Many of us are fortunate to possess, at least in some measure, the qualities our society happens to prize. In a capitalist society, it helps to have entrepreneurial drive. In a bureaucratic society, it helps to get on easily and smoothly with superiors. In a mass democratic society, it helps to look god on television, and to speak in short, superficial sound bites. In a litigious society, it helps to go to law school, and to have the logical and reasoning skills that will allow you to score well on the LSATs.
   That our society values these things is not our doing.  Suppose that we, with our talents, inhabited not a technologically advanced, highly litigious society like ours, but a hunting society, or a warrior society, or a society that conferred its highest rewards and prestige on those who displayed physical strength, or religious piety. What would become of our talents then ? Clearly, they wouldn't get us very far. And no doubt some of us would develop others. But would we be less worthy or less virtuous than we are now ? 
   Rawls answer is NO. We might receive less, and properly so. But while we would be entitled to less, we would be no less worthy, no less deserving than others. The same is true of those in our society who lack prestigious positions, and possess fewer of the talents that our society happens to reward.
   So, while we are entitled to the benefits that the rules of the game promise for the exercise of our talents, it is a mistake and a conceit to suppose that we deserve in the first place a society that values the qualities we have in abundance. In a meritocratic society, most people think that worldly success reflects what we deserve ; the idea is not easy to dislodge. Whether distributive justice can be detached altogether from moral desert is a question I want to explore in much greater depth. 

                                IS LIFE UNFAIR ?

   In 1980, as Ronald Reagan ran for president, the economist Milton Friedman published a bestselling book, co-authored with his wife, Rose, called Free to Choose. It was a spirited, unapologetic defense of the free-market economy, and it became a textbook ---even an anthem ---for the Reagan years. In defending laissez-faire principles against egalitarian objections, Friedman made a surprising concession. He acknowledged that those who grow up in wealthy families and attend elite schools have an unfair advantage over those from less privileged backgrounds. He also conceded that those who, through no doing of their own, inherit talents and gifts have an unfair advantage over others. Unlike Rawls, however, Friedman insisted that we should not try to remedy this unfairness. Instead, we should learn to live with it, and enjoy the benefits it brings : 

     Life is not fair. It is tempting to believe that government can rectify what nature has spawned. But it is also important to recognize how much we benefit from the very unfairness we deplore. There's nothing fair . . . about Muhammad Ali's having been born with the skill that made him a great fighter . . . It is certainly not fair that Muhammad Ali should be able to earn millions in one night. But wouldn't it have been even more unfair to the people who enjoyed watching him if, in the pursuit of some abstract ideal of equality, Muhammad Ali had not been permitted to earn more for one night's fight . . . than the lowest man on the totem pole could get for a day's unskilled work on the docks ?

  In A Theory of Justice, Rawls rejects the counsel of complacence that Friedman's view reflects. In a stirring passage, Rawls states a familiar truth we often forget : The way things are does not determine the way they ought to be . 

     We should reject the contention that the ordering of institutions is always defective because the distribution of natural talents and the contingencies of social circumstance are unjust and this injustice must inevitably carry over to human arrangements. Occasionally this reflection is offered as an excuse for ignoring injustice, as if the refusal to acquiesce in injustice is on par with being unable to accept death. The natural distribution is neither just nor unjust ; nor is it unjust that persons are born into society at some particular position. These are simply natural facts. What is just and unjust is the way that institutions deal with these facts. 

   Rawls proposes that we deal with these facts by agreeing "to share one another's fate," and to avail ourselves of the accidents of nature and social circumstance only when doing so is for the common benefit." Whether or not his theory of justice ultimately succeeds, it represents the most compelling case for a more equal society that American political philosophy has yet produced. 

JOHN RAWLS --- happily continued

                             REJECTING MORAL DESERT

   If Rawls's argument about the moral arbitrariness of talents is right, it leads to a surprising conclusion : Distributive justice is not a matter of moral desert.
   He recognizes that this conclusion is at odds with our ordinary way of thinking about justice : "There is a tendency for common sense to suppose that income and wealth, and the good things in life generally, should be distributed according to moral desert. Justice is happiness according to virtue . . . Now justice as fairness rejects this conception." 
   Rawls undermines the meritocratic view by calling into question its basic premise, namely, that once we remove social and economic barriers to success, people can be said to deserve the rewards their talents bring them :

     We do not deserve our place in the distribution of native endowments, any more than we deserve our initial starting points in society. That we deserve the superior character that enables us to make the effort to cultivate our abilities is also problematic ; for such character depends in good part upon fortunate family and social circumstances in early life for which can claim credit. The notion of desert does not apply here. 

   If distributive justice is not about rewarding moral desert, does this mean that people work work hard and play by the rules have no claim whatsoever on the rewards they get for their efforts ? No, not exactly. Here Rawls makes an important but subtle distinction ----between moral desert and what he calls "entitlements to legitimate expectations." The difference is this : Unlike a desert claim, an entitlement can arise only once certain rules of the game are in place. It can't tell us how to set up the rules in the first place. 

                  Moral Desert versus Entitlement 

   The conflict between moral desert and entitlements underlies many of our most heated debates about justice : Some say that increasing tax rates on the wealthy deprives them of something they morally deserve ; or that considering racial and ethnic diversity as a factor in college admissions deprives applicants with high SAT scores of an advantage they morally deserve. Others say no --- people don't morally deserve these advantages ; we first have to decide what the rules of the game (the tax rates, the admissions criteria) should be. Only then can we say who is entitled to what.
   Consider the difference between a game of chance and a game of skill. Suppose I play the state lottery. If my number comes up, I am entitled to my winnings. But I can't say that I deserved to win, because a lottery is a game of chance. My winning or losing has nothing to do with my virtue or skill in playing the game. 
   Now imagine the Boston Red Sox winning the World Series. Having done so, they are entitled to the trophy. Whether or not they deserved to win would be a further question. The answer would depend on how they played the games. Did they win by a fluke (a bad call by the umpire at a decisive moment, for example) or because they actually played better than their opponents, displaying the excellence and virtues (good pitching, timely hitting, sparkling defense, etc.) that define baseball at its best ? 
   With a game of skill, unlike a game of chance, there can be a difference between who is entitled to the winnings and who deserved to win. This is because games of skill reward the exercise and display of certain virtues. 
   Rawls argues that distributive justice is not about rewarding virtue or moral desert. Instead, it's about meeting the legitimate expectations that arise once the rules of the game are in place. Once the principles of justice set the terms of social cooperation, people are entitled to the benefits they earn under under the rules. But if the tax system requires them to hand over some portion of their income to help the disadvantaged, they can't complain that this deprives them of something they morally deserve.

     A just scheme, then, answers to what men are entitled to ; it satisfies their legitimate expectations as founded upon social institutions. But what they are entitled to is not proportional to nor dependent upon their intrinsic worth. The principles of justice that regulate the basic structure of society . . . do not mention moral desert, and there is no tendency for distributive shares to correspond to it. 

   Rawls rejects moral desert as the basis for distributive justice on two grounds : First, as we've already seen, my having the talents that enable me to compete more successfully than others is not entirely my own doing. But a second contingency is equally decisive : the qualities that a society happens to value at any given time are also morally arbitrary. Even if I had sole, unproblematic claim to my talents, it would still be the case that the rewards these talents reap will depend on the contingencies of supply and demand. In medieval Tuscany, fresco painters were highly valued ; in twenty-first century California, computer programmers are, and so on. Whether my skills yield a lot or a little depends on what the society happens to want.  What counts as contributing depends on the qualities a given society happens to prize. 
   Consider these wage differentials : 

   *The average schoolteacher in the United States makes about $43,000 per year. David Letterman the late-night talk show host, earns $31 million a year. 

   *John Roberts, chief justice of the U.S. Supreme Court, is paid $223,500 a year. Judge Judy, who has a reality television show, makes $47 million a year. 

   Are these pay differentials fair ? Te answer, for Rawls, would depend on whether they arose within a system of taxation and redistribution that worked to the benefit of the least well off. If so, Letterman and Judge Judy would be entitled to their earnings. But it can't be said that Judge Judy deserves to make two hundred times more than Chief Justice Roberts, or that Letterman deserves to make seven hundred times as much as a schoolteacher. The fact that they happen to live in a society that lavishes huge sums on television stars is their good luck, not something they deserve.

JON RAWLS---continued

                         AN EGALITARIAN NIGHTMARE

   "Harrison Bergeron," is a short story by Kurt Vonnegut, Jr., and it describes what might happen in the event of complete egalitarianism.  "The year was 2081," the story begins, "and everybody was finally equal. . . Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else." This thoroughgoing equality was enforced by agents of the United States Handicapper General. Citizens of above average intelligence were required to wear mental handicap radios in their ears. Every twenty seconds or so, a government transmitter woud send out a sharp noise to prevent them "from taking unfair advantage of their brains." 
   Harrison Bergeron, age fourteen, is unusually smart, handsome, and gifted, and so has to to be fitted with heavier handicaps than most. Instead of the little ear radio, "he wore a tremendous pair of earphones, and spectacles with thick wavy lenses." To disguise his good looks, Harrison is required to wear "a red rubber ball for a nose, keep his eyebrows shaved off, and cover his even white teeth with black caps at snaggle tooth random." And to offset his physical strength, he has to walk around wearing heavy scrap metal. "In the race of life, Harrison carried three hundred pounds." 
   One day, Harrison sheds his handicaps in an act of heroic defiance against the egalitarian tyranny. To avoid spoiling the story, we'll not get into the conclusion. It should already be clear how Vonnegut's story makes vivid a familiar complaint against egalitarianism. 
   Rawls's theory of justice, however, is not open to that objection. He shows that a leveling equality is not the only alternative to a meritocratic market society. Rawls's alternative, which he calls the DIFFERENCE PRINCIPLE, corrects for the unequal distribution of talents and endowments without handicapping the talented. HOW ? Encourage the gifted to develop and exercise their talents, but with the understanding that the rewards these talents reap in the market belong to the community as a whole. Don't handicap the best runners ; let them run and do their best. Simply acknowledge in advance that the winnings don't belong to them alone, but should be shared with those who lack similar gifts. 
   Although the difference principle does not require an equal distribution of income and wealth, its underlying idea expresses a powerful, even inspiring vision of equality : 

     The difference principle represents, in effect, an agreement to regard the distribution of natural talents as a common asset and to share in the benefits of this distribution whatever it turns out to be. Those who have been favored by nature, whoever they are, may gain from their good fortune only on terms that improve the situation of those who have lost out. The naturally advantaged are not to gain merely because they are more gifted, but only to cover the costs of training and education and for using their endowments in ways that help the less fortunate as well. No one deserves his greater natural capacity nor merits a more favorable starting place in society. But it does not follow that one should eliminate these distinctions. There is another way to deal with them. There is another way to deal with them. The basic structure of society can be arranged so that these contingencies work for the good of the least fortunate.  

Consider , then, four rival theories of distribution justice : 

   1. Feudal or caste system : fixed hierarchy based on birth.

   2. Libertarian : free market with formal equality of opportunity.

   3. Meritocratic : free market with fair equality of opportunity.

   4. Egalitarian : Rawls's difference principle. 


   Rawls  argues that each of the first three theories bases distributive shares on factors that are are arbitrary from a moral point of view---whether  accident of birth, or social and economic advantage, or natural talents and abilities.Only the difference principle avoids basing the distribution of income and wealth on these contingencies. 
   Although the argument from moral arbitrariness does not rely on the argument from the original position, it is similar in thus respect : Both maintain that, in thinking about justice, we should abstract from, or set aside, contingent facts about persons and their social positions. 

                     A COUPLE OF OBJECTIONS 

   OBJECTION 1 : Incentives 

   Rawls's case for the difference principle invites two main objections. First, what about incentives ? If the talented can benefit from their talents only on terms that help the least well off, what if they decide to work less, or not develop  their skills in the first place ? If tax rates are high or pay differentials small, won't talented people who might have been surgeons go into less demanding lines of work ? Won't Michael Jordan work less hard on his jump shot, or retire sooner than he otherwise might ? 
   Rawls's reply is that the difference principle permits income inequalities for the sake of incentives, provided the incentives are needed  to improve the lot of the least advantaged. Paying CEOs more or cutting taxes on the wealthy simply to increase the gross domestic product would not be enough. But if the incentives generate economic growth that makes those at the bottom better off than they would be with a more equal arrangement, then the difference principle permits them. 
   It is important to notice that allowing wage differences for the sake of incentives is different from saying that the successful have a privileged moral claim to the fruits of their labor. If Rawls is right, income inequalities are just only insofar as they call forth efforts that ultimately help the disadvantaged, not because CEOs or sports stars deserve to make more money than factory workers. 

OBJECTION 2 : Effort

   This brings us to a second, more challenging objection to Rawls's theory of justice : What about effort ? Rawls rejects the meritocratic theory of justice on the grounds that people's natural talents are not their own doing. But what about the hard work people devote to cultivating their talents ? Bill Gates worked long and hard to develop Microsoft. Michael Jordan put in endless hours honing his basketball skills. Notwithstanding their talents and gifts, don't they deserve the rewards their efforts bring ? 
   Rawls replies that even effort may be the product of a favorable upbringing. "Even the willingness to make an effort, to try, and so to be deserving in the ordinary sense is dependent upon happy family and social circumstances." Like other factors in our success, effort is influenced by contingencies for which we can claim no credit."It seems clear that the effort a person is willing to make is influenced by his natural abilities and skills and the alternatives open to him. The better endowed are more likely, other things equal, to strive conscientiously." 
   When Professor Sandel's students encounter Rawls's argument about effort, many strenuously object. They argue that their achievements, including their, admission to Harvard, reflect their own hard work, not morally arbitrary factors beyond their control. Many view with suspicion any theory of justice that suggests we don't morally deserve the rewards our efforts bring us. 
   Afrer Prof Sandel and his students debate Rawls's claim about effort, Sandel conducts an unscientific survey. He points out that psychologists say that birth order has an influence on effort and striving ---such as the effort the students associate with getting into Harvard. The first-born reportedly have a stronger work ethic, make more money, and achieve more conventional success than their younger siblings. These studies are controversial, and most folks question whether their findings are true. But just for the fun of it, Prof Sandel asks his students how many are first in birth order. About 75 to 80 percent raise their hands. The resukt has been the same every time the poll has bee taken.
   No one claims that being first in birth order is one's own doing. If something as morally arbitrary as birth order can influence our tendency to work hard and strive conscientiously, then Rawls may have a point. Even effort can't be the basis of moral desert. 
   The claim that people deserve the rewards that come from effort and hard work is questionable for a further reason : although proponents of meritocracy often invoke the virtues of effort, they don't really believe that effort alone should be the basis of income and wealth. Consider two construction workers. One is strong and brawny, and can build four walls in a day without breaking a sweat. The other is weak and scrawny, and can't carry more than two bricks at a time. Although he works very hard, it takes him a week to do what his muscular co-worker achieves, more or less effortlessly, in a day. No defender of meritocracy would say the weak but hardworking worker deserves to be paid more, in virtue of his superior effort, than the strong one.
   Or consider Michael Jordan. Its true, he practiced hard. But some lesser basketball players practice even harder. No one would say they deserve a bigger contract tan Jordan's as a reward for all the hours they put in. So, despite the talk about effort, it's really contribution, or achievement, that the meritocrat believes is worthy of reward. Whether or not our work ethic is our own doing, our contribution depends, at least in part, on natural talents for which we can claim no credit.

                                                

JOHN RAWLS --- continued

                             TWO PRINCIPLES OF JUSTICE 

   Suppose Rawls is right : The way to think about justice is to ask what principles we would choose in an original position of equality, behind a veil of ignorance. What principles would emerge ? 
   According to Rawls, we wouldn't chose utilitarianism. Behind the veil of ignorance, we don't know where we will wind up in society, but we do know that we will want to pursue our ends and be treated with respect. In case we turn out to be a member of an ethnic or religious minority, we don't want to be oppressed, even if this gives pleasure to the majority. Once the veil of ignorance rises and real life begins, we don't want to find ourselves as victims of religious persecution or racial discrimination. In order to protect against these dangers, we would reject utilitarianism and agree to a principle of equal basic liberties for all citizens, including the right to liberty of conscience and freedom of thought. And we would insist that this principle take priority over attempts to maximize the general welfare. We would not sacrifice our fundamental rights and liberties for social and economic benefits.
   What principle would we choose to govern social and economic inequalities ?  To guard against the risk of finding ourselves in crushing poverty, we might at first thought favor an equal distribution of income and wealth. But then it would occur to us that we could do better, even for those on the bottom. Suppose that by permitting certain inequalities, such as higher pay for doctors than for bus drivers, we could improve the situation of those who have the least --- by increasing access to health care for the poor. Allowing for this possibility, we would adopt what Rawls calls "the difference principle" : only those social and economic inequalities are permitted that work to the benefit of the least advantaged members of society. 
   Exactly how egalitarian is the difference principle ? It's hard to say, because the effect of pay differences depends on social and economic circumstances. Suppose higher pay for doctors led to more and better medical care in impoverished rural areas. In that case, the wage difference could be consistent with Rawls's principle. But suppose paying doctors more had no impact on health services in Appalacia, and simply produced more cosmetic surgeons in Beverly Hills. In that case, the wage difference would be hard to justify from Rawls's point of view. 
   What about the big earnings of Michael Jordan or the vast fortune of Bill Gates ? Could these inequalities be consistent with the difference principle ? Of course, Rawls's theory is not meant to assess the fairness of this or that person's salary. It is concerned with the basic structure of society, and the way it allocates rights and duties, income and wealth, power and opportunities. For Rawls, the question to ask is whether Gates's wealth arose as part of a system that, taken as a whole, works to the benefit of the least well off. For example, was it subject to a progressive tax system that taxed the rich to provide for the health, education, and welfare of the poor ? If so, and if this system made the poor better off than they would have been under a more strictly equal arrangement, then such inequalities could be consistent with the difference principle.
   Some people question whether the parties to the original position would choose the difference principle. How does Rawls know that, behind the veil of ignorance, people wouldn't be gamblers, willing to take their chances on a highly unequal society in hopes of landing on top ? Maybe some would even opt for a feudal society, willing to risk being a landless serf in the hopes of being a king.
   Rawls doesn't believe that people choosing principles to govern their fundamental life prospects would take such chances. Unless they knew themselves to be lovers of risk (a quality blocked from view by the veil of ignorance) , people would not make risky bets at high stakes. But Rawls's case for the difference principle doesn't rest entirely on the assumption that people in the original position would be risk averse. Underlying the device of the veil of ignorance is a moral argument that can be presented independent of the thought experiment. Its main idea is that the distribution of income and opportunity should not be based on factors that are arbitrary from a moral point of view. 

    THE ARGUMENT FROM MORAL ARBITRARINESS

    
   Rawls presents this argument by comparing several rival theories of justice, beginning with feudal aristocracy. These days, only a tiny percent of super rich Americans defends the justice of feudal aristocracies or caste systems. These systems are unfair, Rawls observes, because they distribute income, wealth, opportunity, and power according to the accident of birth. If you are born into nobility, you have rights and powers denied those born into serfdom. But the circumstances of your birth are no doing of yours. So it's unjust to make your life prospects depend on this arbitrary fact. 
   Market societies remedy this arbitrariness, at least to some degree. They open careers to those with the requisite talents and provide equality before the law. Citizens are assured equal basic liberties, and the distribution of income and wealth is determined by the free market. This system --- a free market with formal equality of opportunity --- corresponds to the libertarian theory of justice. It represents an improvement over feudal and caste societies, since it rejects fixed hierarchies of birth. Legally, it allows everyone to strive and to compete. In practice, however, opportunities may be far from equal.
   Those who have supportive families and a good education have obvious advantages over those who do not. Allowing everyone to enter the race is a good thing. But if the runners start from different starting points, the race is hardly fair.That is why, Rawls argues, the distribution of income and wealth that results from a free market with formal equality of opportunity cannot be considered just. The most obvious injustice of the libertarian system "is that it permits distributive shares to be improperly influenced by these factors so arbitrary from a moral point of view."
   One way of remedying this unfairness is to correct for social and economic disadvantage. A fair meritocracy attempts to do so by going beyond merely formal equality of opportunity. It removes obstacles to achievement by providing equal educational opportunities, so that those from poor families can compete on an equal basis with those from privileged backgrounds. It institutes Head Start programs, childhood nutrition and health care programs, education and job training programs ---whatever is needed to bring everyone, regardless of class or family background, to the same starting point. According to the meritocratic conception, the distribution of income and wealth that results from a free market is just, but only if everyone has the same opportunity to develop his or her talents. Only if everyone begins at the same starting line can it be said that the winners of the race deserve their rewards. 
   Rawls believes that the meritocratic conception corrects for certain morally arbitrary advantages, but still falls short of justice. For, even if you manage to bring everyone up to the same starting point, it is more or less predictable who will win the race --- the fastest runners. But being a fast runner is not wholly my own doing. It is morally contingent in the same way that coming from an affluent family is contingent. ""Even if it works to perfection in eliminating the influence of social contingencies," Rawls writes, the meritocratic system "still permits the distribution of wealth and income to be determined by the natural distribution of abilities and talents.
   If Rawls is right, even a free market operating in a society with equal educational opportunities does not produce a just distribution of income and wealth. The reason : "Distributive shares are decided by the outcome of the natural lottery ; and this outcome is arbitrary from a moral perspective. There is no more reason to permit the distribution of income and wealth to be settled by the distribution of natural assets than by historical and social fortune."
   Rawls concludes that the meritocratic conception of justice is flawed for the same reason(though to a lesser degree) as the libertarian conception. Both base distributive shares on factors that are morally arbitrary."Once we are troubled by the influence of either social contingencies or natural chance on the determination of the distributive shares, we are bound, on reflection, to be bothered by the influence of the other. From a moral standpoint the two seem equally arbitrary."
   Once we notice the moral arbitrariness that taints both libertarian and the meritocratic theories of justice, Rawls argues, we can't be satisfied short of a more egalitarian conception. But what could this conception be ? It is one thing to remedy unequal educational opportunities, but quite another to remedy unequal native endowments. If we are bothered by the fact that some runners are faster than others, don't we have to make the gifted runners wear lead shoes ? Some critics of egalitarianism believe that the only alternative to a meritocratic market society is a leveling equality that imposes handicaps on the talented. 
   

   
   

JOHN RAWLS --- a continuation

  WHEN CONSENT IS NOT ESSENTIAL : HUME'S HOUSE &
                          THE SQUEEGEE MEN IN N. Y. 


   This kind of case once confronted David Hume, the eighteenth-century Scottish moral philosopher. When he was young, Hume wrote a scathing critique of Locke's idea of a social contract. He called it a "philosophical fiction which never had and never could have any reality," and "one of the most mysterious and incomprehensible operations that can possibly be imagined." Years later, Hume had an experience that put to the test his rejection of consent as the basis of obligation. 
   Hume owned a house in Edinburgh. He rented it to his friend James Boswell, who in turn sublet it to a subtenant. The subtenant decided that the house needed some repairs. He hired a contractor to do the work, without consulting Hume. The contractor made the repairs and sent the bill to Hume. Hume refused to pay up on the grounds that he hadn't consented. He hadn't hired the contractor. The case went to court. Te contractor acknowledged that Hume hadn't consented. But the house needed the repairs, and he performed them. 
   Hume thought this was a bad argument. The contractor's claim was simply "that the work was necessary to be done," Hume told the court. But this is "no good answer, because by the same rule he may go through every house in Edinburgh, and do what he thinks proper to be done, without the landlord's consent . . . and give the same reason for what he did, that the work was necessary and that the house was the better of it." But this, Hume maintained, was "a doctrine quite new. . . and altogether untenable." 
   When it came to his house repairs, Hume didn't like a purely benefit-based theory of obligation. But his defense failed, and the court ordered him to pay. 
   The idea that an obligation to repay a benefit can arise without  consent is morally plausible in the case of Hume's house. But it can easily slide into high - pressure sales tactics and other abuses. In the 1980s and early 1990s, "squeegee men" became an intimidating presence on New York City streets. Equipped with a squeegee and a bucket of water, they would descend upon a car stopped at a red light, wash the windshield (usually without asking the driver's permission) , and then ask for payment. They operated on the benefit-based theory of obligation invoked by Hume's contractor. But in the absence of consent, the line between performing a service and panhandling often blurred. Mayor Rudy Giuliani decided to crack down on the squeegee men and ordered the police to arrest them. 

 BENEFIT OR CONSENT : SAM'S MOBILE AUTO REPAIR

   Here is another example of the confusion that can arise when the consent-based and benefit-based aspects of obligation are not clearly distinguished. Many years ago, when Professor Michael Sandel (Harvard philosophy professor) was a graduate student, he drove across the country with some friends. They stopped at a rest stop in Hammond, Indiana, and went into a convenience store. When they returned to their car, it wouldn't start. None of them knew jackshit about car repair. As they wondered what to do, a van pulled up beside them. On the side was a sign that said, "Sam's Mobile Repair Van." Out of the van came a man, presumably Sam. 
   He approached them and asked if he could help. "Here's how I work," he explained. "I charge fifty dollars an hour. If I fix your car in five minutes, you will owe me fifty dollars. If I work on your car for an hour and can't fix it, you will still owe me fifty dollars." 
    "What are the odds you'll be able to fix the car ?" Professor Sandel asked him. Sam didn't answer Prof Sandel directly, but started poking around under the steering column. Prof Sandel was unsure what to do. He looked to his friends to see what they thought. After a short time, the man emerged from under the steering column and said, "Well, there's nothing wrong with the ignition system, but you still have forty-five minutes left. Do you want me to look under the hood? " 
   "Wait a minute, Prof Sandel said. "I haven't hired you. We haven't made any agreement." The man became very angry and said, "Do you mean to say that if I had fixed your car just now while I was looking under the steering column you wouldn't have paid me ?"
   Prof Sandel said, "That's a different question."
   The professor didn't go into the distinction between consent-based and benefit-based obligations. Somehow he didn't think it would have helped. But the contretemps with Sam the repairman highlights a common confusion about consent. Sam believed that if he had fixed the car while he was poking around, Prof Sandel have owed him the fifty dollars. Prof Sandel agrees. But the reason Prof Sandel would have owed him the money is that he would have performed a benefit ---namely, fixing the car. He inferred that, because Prof Sandel would have owed him, Prof S must (implicitly) have agreed to hire him. But this inference is a mistake. It wrongly assumes that whenever there is an obligation, there must have been an agreement ---some act of consent. It overlooks the possibility that obligation can arise without consent. If Sam had fixed the car, Prof S would have owed him in the name of reciprocity. Simply thanking him and driving off would have been unfair. But this doesn't infer that Prof S hired him. 
   When Professor  Sandel tells this story to his students, most agree that, under the circumstances, Prof S didn't owe Sam the fifty dollars. But many hold this view for reasons different from their prof's. They argue that, since Prof S didn't explicitly hire Sam, Prof S owed him nothing ---and would have owed him nothing even if he had fixed the car. Any payment would have been an act of generosity---a gratuity, not a duty. So they come to their prof's defense, not by embracing an expansive view of obligation, but by asserting a stringent view of consent.
   Despite our tendency to read consent into every moral claim, it is hard to make sense of our moral lives without acknowledging the independent weight of reciprocity. Consider a marriage contract. Suppose I discover after twenty years of faithfulness on my part, that my wife has been seeing another man(or woman). I would have two different grounds for moral outrage. One invokes consent :"But we had an agreement. You made a vow. You broke your promise." The second would invoke reciprocity : "But I have been so faithful for my part. Surely I deserve better than this. This is no way to repay my loyalty." And so on. The second complaint makes no reference to consent, and does not require it. It It would be morally plausible even if we never exchanged marital vows, but lived together as partners for all those years. 

                IMAGINING THE PERFECT CONTRACT

   What do these various misadventures tell us about the morality of contracts ? Contracts derive their moral force from two different ideals, AUTONOMY and RECIPROCITY.  But most actual contracts fall short of these ideals. If I'm up against someone with a superior bargaining position, my agreement may not be wholly voluntary, but pressured or, in the extreme case, coerced. If I'm negotiating with someone with greater knowledge of the things we are exchanging, the deal may not be mutually beneficial. In the extreme case, I may be defrauded or deceived. 
   In real life, persons are situated differently. This means that differences in bargaining power and knowledge are always possible. And as long as this is true, the fact of an agreement does not, by itself, guarantee the the fairness of an agreement. This is why actual contracts are not self-sufficient moral instruments. It always makes sense to ask, "But is it fair, what they have agreed to ?" 

   For Yaweh's Sake, Read Everything That Follows With
                     The Greatest Care and Scrutiny


   But imagine a contract among parties who were equal in power and knowledge, rather than unequal ; who were identically situated, not differently situated. And imagine that the object of this contract was not plumbing or any ordinary deal, but the principles to govern our lives together, to assign our rights and duties as citizens. A contract like this, among parties like these, would leave no room for coercion or deception or deception or other unfair advantages. Its terms would be just, whatever they were, by virtue of their agreement alone.
   If you can imagine a contract like this, you have arrived at Rawls's idea of a hypothetical agreement in an initial situation of equality. The veil of ignorance ensures the equality of power and knowledge that the original position requires. By ensuring that no one knows his or her place in society, his strengths or weaknesses, his values or ends, the veil of ignorance ensures that no one can take advantage, even unwittingly, of a favorable bargaining position. 

     If a knowledge of particulars is allowed, then the outcome is biased by arbitrary contingencies . . . If the original position is to yield agreements that are just, the parties must be fairly situated and treated equally as moral persons. The arbitrariness of the world must be corrected for by adjusting the circumstances of the initial contract situation. (All that underscoring is VOS's, not John Rawls's.) 

   The irony is that a hypothetical agreement behind a veil of ignorance is not a pale form of an actual contract and so a morally weaker thing. It's a pure form of an actual contract, and so a morally more powerful thing. 

     

JOHN RAWLS----continued

                  THE MORAL LIMITS OF CONTRACTS

   To appreciate the moral force of Rawls's hypothetical contract, it helps to notice the moral limits of actual contracts. We sometimes assume that, when two people make a deal, the terms of their agreement must be fair. We assume, in other words, that contracts justify the terms that they produce. But they don't --- at least not on their own. Actual contracts are not self-sufficient moral instruments. The mere fact that you and I make a deal is not enough to make it fair. Of any actual contract, it can always be asked, "Is it fair, what they agreed to?" To answer this question, we can't simply point to the agreement itself ; we need some independent standard of fairness. 

   Where could such a standard come from ? Perhaps, you might think, from a  bigger, prior contract --- a constitution, for example. But constitutions are open to the same challenge as other agreements. The fact that a constitution is ratified by the people does not prove that its provisions are just. Consider the U.S. Constitution of 1787. Despite its many virtues, it was marred by its acceptance of slavery, a defect that persisted until after the Civil War. The fact that the Constitution was agreed to ---by the delegates in Philadelphia and then by the states --- was not enough to make it just.
   It might be argued that this defect can be traced to a flaw in the consent. African American slaves were not included in the Constitutional Convention, nor were women, who didn't win the right to vote until more than a century later. It is certainly possible that a more representative convention would have produced a more just convention. But that is a matter of speculation. No actual social contract or constitutional convention, however representative, is guaranteed to produce fair terms of social cooperation. 
   To those who believe that morality begins and ends with consent, this may seem a jarring claim. But it is not all that controversial. We often question the fairness of the deals people make. And we are familiar with the contingencies that can lead to bad deals : one of the parties may be a better negotiator, or have a stronger bargaining position, or know more about the value of the things being exchanged. The famous words of Don Carleone in The Godfather, "I'm gonna make him an offer he can't refuse," suggest (in extreme form) the pressure that hovers, to some degree, over most negotiations.
   To recognize that contracts do not confer fairness on the terms they produce doesn't mean we should violate our agreements when we please. We may be obligated to fulfill even an unfair bargain, at least up to a point. Consent matters, even if it's not all there is to justice. But it is less decisive than we sometimes think. We often confuse the moral work of consent with other sources of obligation.
   Suppose we make a deal : You will bring me a hundred pounds of shrimp, and I will pay you $1,000. You harvest and deliver the shrimp, I eat them and enjoy them, but refuse to pay. You say I owe you the money. Why, I ask ? You might point to our agreement, but you might also point to the benefit I've enjoyed. You could very well say that I have an obligation to repay the benefit that, thanks to you, I've enjoyed.
   Now suppose we make the same deal, but this time, after you've gone to the work of catching the shrimp and bringing them to my doorstep, I change my mind. I don't want them after all. You still try to collect, I say, "I don't owe you anything. This time, I haven't benefited." At this point, you might point to our agreement, but you might also point to the hard work you've done to catch the shrimp while relying on the expectations that I would buy them. You could say I'm obliged to pay by virtue of the efforts you've made on my behalf. (Lawyers might talk about "detrimental reliance.") 
   Now let's see if we can imagine a case where the obligation rests on consent alone --- without the added moral weight of repaying a benefit or compensating you for the work you did on my behalf. This time, we make the same deal, but moments later, before you've spent any time gathering shrimp, I call you back and say, "I've changed my mind. I don't want any shrimp." Do I still owe you the $1,000? Do you say, "A deal is a deal," and insist that my act of consent creates an obligation even without any benefit or reliance ?
   Legal thinkers have debated this question for a long time. Can consent create an obligation on its own, or is some element of benefit or reliance also required ? This debate tells us something about the morality of contracts that we often overlook : actual contracts carry moral weight insofar as they realize two ideals ---autonomy and reciprocity.
    As voluntary acts, contracts express our autonomy, the obligations they create carry weight because they are self-imposed--- we take them freely upon ourselves. As instruments of mutual benefit, contracts draw on the ideal of reciprocity ; the obligation to fulfill them arises from the obligation to repay others for the benefits they provide us.
   In practice, these ideals ---autonomy and reciprocity---are imperfectly realized. Some agreements, though voluntary, are not mutually beneficial. And sometimes we can be obligated to repay a benefit simply on grounds of reciprocity, even in the absence of a contract. This points to the moral limits of consent : In some cases, consent may not be enough to create a morally binding obligation ; in others, it may not be necessary. 

                  WHEN CONSENT IS NOT ENOUGH 

   Consider two cases that show that consent alone is not enough : When a friend's two sons were young, they collected baseball cards and traded them with each other. The older son knew more about the players and the value of the cards. He sometimes offered his younger brother trades that were unfair --- two utility infielders, say, for Ken Griffey, Jr. So my friend instituted a rule that no trade was complete until my friend had approved it. You may think this was paternalistic, which it was. (That's what paternalism is for.) In circumstances like this one, voluntary exchanges can be unfair. 

   Some years ago, there was a newspaper story about a more extreme case : An elderly widow in Chicago had a leaky toilet in her apartment. She hired a contractor to fix it ---for $50,000. She signed a contract that required her to pay $25,000 as a down payment, and the remainder in installments. The scheme was discovered when she went to the bank to withdraw the $25,000. The teller asked why she needed such a large withdrawal, and the woman replied that she had to pay the plumber. The teller contacted the police, who arrested the unscrupulous contractor for fraud. 
   All but the most ardent contractarians would concede that the $50,000 toilet repair was egregiously unfair --- despite the fact that two willing parties agreed to it. This case illustrates two points about the moral limits of contracts : First, the fact of an agreement does not guarantee the fairness of the agreement. Second, consent is not enough to create a binding moral claim. Far from an instrument of mutual benefit, this contract mocks the ideal of reciprocity. This explains, I think, why few people would say that the elderly woman was morally obligated to pay the outrageous sum. 
   It might be argued that the toilet repair scam was not a truly voluntary contract, but a kind of exploitation, in which an unscrupulous plumber took advantage of an elderly woman who didn't know any better. Let's assume for the sake of argument that the plumber did not coerce the woman, and that she was of sound mind (though ill informed about the price of plumbing) when she agreed to the deal. The act that the agreement was voluntary by no means ensures that it involves the exchange of equal or comparable benefits. 
   So far the argument has been that consent is not a sufficient condition of moral condition ; a lopsided deal may fall so far short of mutual benefit that even its voluntary character can't redeem it. Now here's a further, more provocative claim : Consent is not a necessary condition of moral obligation. If the mutual benefit is clear enough, the moral claim of reciprocity may hold even without an act of consent. 
   
   

   

JOHN RAWLS : THE CASE FOR EQUALITY

               

   Most of us Americans never signed a social contract. In fact, the only people in the United States who have actually agreed to abide by the Constitution(public officials aside) are naturalized citizens --- immigrants who have taken an oath of allegiance as a condition of their citizenship. The rest of us are never required, or even asked, to give our consent. So why are we obligated to obey the law ? And how can we say that our government rests on the consent of the governed ?
   John Locke says we've given tacit consent. Anyone who enjoys the benefits of a government, even by traveling on the highway, implicitly consents to the law, and is bound by it. But tacit consent is a pale form of the real thing. It is hard to see how just passing through town is morally akin to ratifying the Constitution.
   Immanuel Kant appeals to hypothetical consent. A law is just if it could have been agreed to by the public as a whole. But this, too, is a puzzling alternative to an actual social contract. How can a hypothetical agreement do the moral work of a real one ? 

   John Rawls (1921--2002), an American political philosopher, offers an illuminating answer to this question. In A Theory of Justice(1971), he argues that the way to think about justice is to ask what principles we would agree to in an initial situation of equality. Rawls reasons as follows : Suppose we gathered, just as we are, to choose the principles to govern our collective life---to write a social contract. What principles would we choose ? We would probably find it difficult to agree. Different people would favor different principles, reflecting their various interests, moral and religious beliefs, and social positions. Some people are rich and some are poor ; some are powerful and well connected ; others, less so. Some are members of racial, ethnic, or religious minorities ; others, not. We might settle on a compromise. But even the compromise would likely reflect the superior bargaining power of some over others. There is no reason to assume that a social contract arrived at in this way would be a just arrangement.

   Now consider a thought experiment : Suppose that when we gather to choose the principles, we don't know where we will wind up in society. Imagine that we choose behind a "veil of ignorance" that temporarily prevents us from knowing anything about who in particular we are. We don't know our class or gender, our race or ethnicity, our political opinions or religious convictions. Nor do we know our advantages and disadvantages ---whether we are healthy of frail. highly educated or a high school dropout, born to a supportive family or a broken one. In no one knew any of these things, we would choose, in effect, from an original position of equality. Since no one would have a superior bargaining position, the principles we would agree to would be just. 
   This is Rawls' idea of a social contract --- a hypothetical agreement in an original position of equality. Rawls invites us to ask what principles we --- as rational, self-interested persons---would choose if we found ourselves in that position. He doesn't assume that we are all motivated by self-interest in real life ; only that we set aside our moral and religious convictions for purposes of the thought experiment. What principles would we choose ? 
   First of all, we would not choose utilitarianism. Behind the veil of ignorance, each of us would think, "For all I know, I might wind up being a member of an oppressed minority." And no one would want to risk being the Christian thrown to the lions for the pleasure of the crowd. Nor would we choose a purely laissez-faire, libertarian principle that would give people a right to keep all the money they made in the market economy. "I might wind up being Bill Gates," each person would reason, "but then again, I might turn out to be a homeless person. So I'd better avoid a system that could leave me destitute and without help. 

          RAWLS' TWO PRINCIPLES OF JUSTICE

   Rawls believes that two principles of justice would emerge from the hypothetical contract. The first provides equal basic liberties for all citizens, such as freedom of speech and religion. This principle takes priority over considerations of social utility and the general welfare. The second principle concerns social and economic equality. Although it does not require an equal distribution of income and wealth, it permits only those social and economic inequalities that work to the advantage of the least well off members of society.
   Philosophers argue about whether or not the parties to Rawls's hypothetical social contract would choose the principles he says they would. In a moment, we'll see why Rawls thinks these two principles would be chosen. But before turning to the principles, we need to take up a prior question : Is Rawls's thought experiment the right way to think about justice ? How can principles of justice possibly be derived from an agreement that never actually took place ? 

KANT AND JUSTICE

                                               

   Unlike Aristotle, Bentham, and Mill, Kant wrote no major work of political theory, only some essays. And yet, the account of morality and freedom that emerges from his ethical writings carries powerful implications for justice. Although Kan't work does not work out the implications in detail, the political theory he favors rejects utilitarianism in favor of a theory of justice based on a social contract.
   First, Kant rejects utilitarianism, not only as a basis for personal morality but also as a basis for law. As he sees it, a just constitution aims at harmonizing each individual's freedom with that of everyone else. It has nothing to do with maximizing utility, which "must on no account interfere" with the determination of basic rights. Since people "have different views on the empirical end of happiness and what it consists of," utility can't be the basis of justice and rights. Why not ? Because resting rights on utility would require the society to affirm or endorse one conception of happiness over others. To base the constitution on one particular conception of happiness (such as that of the majority) would impose on some the values of others. It would fail to respect the right of each person to pursue his or her own ends. "No one can compel me to be happy in accordance with his conception of the welfare of others," Kant writes, "for each may seek his happiness in whatever way he sees fit, so long as he does not infringe upon the freedom of others" to do the same. 
   A second distinctive feature of Kant's political theory is that it derives justice and rights from a social contract---but a social contract with a puzzling twist. Earlier contract thinkers, including Locke, argued that legitimate government arises from a social contract among men and women who, at one time or another, decide among themselves on the principles that will govern their collective life. Kant sees the contract differently.  Although legitimate government must be based on an original contract, "we need by no means assume that this contract . . . actually exists as a fact, for it cannot possibly be so." Kant maintains that the original contract is not actual but imaginary.
    Why derive a just constitution from an imaginary contract rater than a real one ? One reason is practical : It's often hard to prove historically, in the distant history of nations, that any social contract ever took place. A second reason is philosophical : Moral principles can't be derived from empirical facts alone. Just as the moral law can't rest on the interests or desires of individuals, principles of justice can't rest on the interests or desires of a community. The mere fact that a group of people in the past agreed to a constitution is not enough to make that constitution just.
   What kind of imaginary contract could possibly avoid this problem ? Kant simply calls it "an idea of reason, which nonetheless has undoubted practical reality ; for it can oblige every legislator to frame his laws in such a way that they could have been produced by the united will of a whole nation," and obligate each citizen "as if he had consented." Kant concludes that this imaginary act of collective consent "is the test of the rightfulness of every public law." 
   Kant didn't tell us what this imaginary contract would look like or what principles of justice it would produce. Almost two centuries later, an American political philosopher, John Rawls, would try to answer these questions. 
   This concludes the discussion, in chief, of Immanuel Kant. Now, on to my main man, John Rawls. 

                       

QUESTIONS FOR KANT

   Kant's moral philosophy is powerful and compelling. But it can be difficult to grasp, especially at first. If you have followed along so far, several questions no doubt have occurred to you. Here are four especially important ones :


QUESTION 1 : Kant's categorical imperative tells us to treat everyone with respect, as an end in itself. Isn't this pretty much the same as the Golden Rule ?(Do unto others as you would have them do unto you.) 

   ANSWER : No. The Golden Rule depends on contingent facts about how people would like to be treated. Te categorical imperative requires that we abstract from such contingencies and respect persons as rational beings, regardless of what they might want in a particular situation. 
   Suppose you learn that your brother has died in a car accident. Your elderly mother( about 75 years old ! ), in frail condition in a nursing home, asks for news of him. You are torn between telling her the truth and sparing her the shock and agony of it. What is the right thing to do ? The Golden Rule would ask, "How would you like to be treated in a similar circumstance ?" Te answer, of course, is highly contingent. Some people would rather be spared harsh truths at vulnerable moments, while others want the truth, however painful. You might well conclude that, if you found yourself in your mother's condition, you would rather not be told.
   For Kant, however, this is the wrong question to ask. What matters is not how you (or your mother) would feel under these circumstances, but what it means to treat persons as rational beings, worthy of respect. Here is a case where compassion might point one way and Kantian respect another. From the standpoint of the categorical imperative, lying to your mother out of concern for her feelings would arguably use her as a means to her own contentment rather than respect her as a rational being. 

QUESTION 2 : Kant seems to suggest that answering to duty and acting autonomously are one and the same. But how can that be ? Acting according to duty means having to obey a law. How can subservience to a law be comparable with freedom ?

   ANSWER : Duty and autonomy go together only in a special case --- when I am the author of the law I have a duty to obey. My dignity as a free person does not consist in being subject to the moral law, but in being the author of "this very same law --- and subordinated to it only on this ground." When we abide by the categorical imperative, we abide by a law we have chosen. "The dignity of man consists precisely in his capacity to make universal law, although only on condition of being himself also subject to the law he makes." 

QUESTION 3 : If autonomy means acting according to a law I give myself, what guarantees that everyone will choose the same moral law ? If the categorical imperative is the product of my will, isn't it likely that different people will come up with different categorical imperatives ? Kant seems to think we will all agree on the same moral law. But how can we be sure that different people won't reason differently, and arrive at various moral laws ? 

   ANSWER : When we will the moral law, we don't choose as you and me, particular persons that we are, but as rational beings, as participants in what Kant calls "pure practical reason." So it's a mistake to think that the moral law is up to us as individuals. Of course, if we reason from our particular interests, desires, and ends, we may may be led to any number of principles. But these are not moral principles, only prudential ones. Insofar as we exercise pure practical reason, we abstract from our particular interests. This means that everyone who exercises pure practical reason will reach the same conclusion --- will arrive at a single (universal) categorical imperative. "Thus a free will and a will under moral laws are one and the same. 

QUESTION 4 : Kant argues that if morality is more than a matter of prudential calculation, it must take the form of a categorical imperative. But how can we know that morality exists apart from the play of power and interests ? Can we ever be sure that we are capable of acting autonomously, with a free will ? What if scientists discover (through brain-imaging, for example, or cognitive neuroscience) that we have no free will after all : Would that disprove Kant's moral philosophy ?

   ANSWER : Freedom of the will is not the kind of thing that science can prove or disprove. Neither is morality. It's true that human beings inhabit the realm of nature. Everything we do can be described from a physical or biological point of view. Wen I raise my hand to cast a vote, my action can be explained in terms of muscles, neurons, synapses, and cells. But it can also be explained in terms of ideas and beliefs. Kant says we can't help but understand ourselves from both standpoints ---the empirical realm of physics and biology, and an "intelligible" realm of free human agency. 

   To answer this question more fully, we need to consider a bit more about these two standpoints. They are two perspectives we can take on human agency, and on the laws that govern our actions. Here is how Kant explains the two standpoints : 

     A rational being . . . has two points of view from which he can regard himself and from which he can know laws governing all his actions. He can consider himself first --- as far as he belongs to the sensible world ---to be under laws of nature (heteronomy) ; and secondly---so far as he belongs to the intelligible world---to be under laws which, being independent of nature, are not empirical but have their ground in reason alone.

   The contrast between these two perspectives lines up with the three contrasts we have already discussed :

   CONTRAST 1 (morality):     duty v. inclination 

   CONTRAST 2 (freedom):      autonomy v. heteronomy 

   CONTRAST 3 (reason):        categorical v. hypothetical 
                                              imperatives

   CONTRAST 4 (standpoints):  intelligible v. sensible realms 

   As a natural being, I belong to the sensible world. My actions are determined by the laws of nature and the regularities of cause and effect. This is the aspect of human action that physics, biology, and neuroscience can describe. As a rational being, I inhabit an intelligible world. Here, being independent of the laws of nature, I am capable of autonomy, capable of acting according to a law I give myself. 
  Kant argues that only from this second (intelligible) standpoint can I regard myself as free, "for to be independent of determination by causes in the sensible world (and this is what reason must always attribute itself to) is to be free."
   If I were only an empirical being, I would not be capable of freedom. Every exercise of will would be conditioned by some interest or desire. All choice would be heteronomous choice, governed by the pursuit of some end. My will could never be a first cause, only the effect of some prior cause, the instrument of one or another impulse or inclination. 
  Insofar as we think of ourselves as free, we cannot think of ourselves as merely empirical beings. "When we think of ourselves as free, we transfer ourselves into the intelligible world as members and recognize the autonomy of the will together with its consequence---morality.
   So---to return to the question---how are categorical imperatives possible ? Only because "the idea of freedom makes me a member of the intelligible world." The idea that we can act freely, take moral responsibility for our actions, and hold other people morally responsible for their actions requires that we see ourselves from this perspective---from the standpoint of an agent, not merely an object. If you really want to resist this notion, and claim that human freedom and moral responsibility are utter illusions, then Kan't account can't prove you wrong. But it would be difficult if not impossible to understand ourselves, to make sense of our lives, without some conception of freedom and morality. And any such conception, Kant thinks, commits us to the two standpoints ---the standpoint of the agent and of the object. And once you see the force of this picture, you will see why science can never prove or disprove the possibility of freedom. 
   Remember, Kant admits that we aren't only rational beings. We don't only inhabit the intelligible world. If we were only rational beings, not subject to the laws and necessities of nature, then all of our actions "would invariably accord with the autonomy of the will." Because we inhabit, simultaneously, both standpoints---the realm of necessity and the realm of freedom --- there is always potentially a gap between what we do and what we ought to do, between the way things are and the way they ought to be. 
   Another way of putting this point is to say that morality is not empirical. It stands at a certain distance from the world. It passes judgment on the world. Science can't, for all its power and insight, reach moral questions, because it operates within the sensible realm. 
   "To argue freedom away," Kant writes, "is as impossible for the most abstruse philosophy as it is for the most ordinary reason." It's also impossible, Kant might have added, for cognitive neuroscience, however sophisticated. Science can investigate nature and inquire into the empirical world, but it cannot answer moral questions or disprove free will. That is because morality and freedom are not empirical concepts. We can't prove that they exist, but neither can we make sense of our moral lives without presupposing them. 
 
 
   

      

                                 IMMANUEL KANT ---cont   

Categorical imperative II : Treat persons as ends 

   The moral force of the categorical imperative becomes clearer in Kant's second formulation of it, the formula of humanity as an end. Kant introduces the second version of the categorical imperative as follows : We can't base the moral law on any particular interests, purposes, or ends, because then it would be only relative to the person whose ends they were. "But suppose there were something whose existence has in itself an absolute value," as an end in itself. "Then in it, and in it alone, would there be the ground of a possible categorical imperative."    
   What could possibly have an absolute value, as an end in itself ? Kant's answer : humanity. "I say that man, and in general every rational being, exists as an end in itself, not merely as a means for arbitrary use by this or that will." This is the fundamental difference, Kant reminds us, between persons and things. Persons are rational beings. They don't just have a relative value, but if anything has, they have an absolute value, an intrinsic value. That is, rational beings have dignity.
   This line of reasoning leads Kant to the second formulation of the categorical imperative. "Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end." 
    Consider again the false promise. The second formulation of the categorical imperative helps us see, from a slightly different angle, why it's wrong. When I promise to repay you the money I hope to borrow, knowing that I won't be able to, I'm manipulating you. I'm using you as a means to my financial solvency, not treating you as an end, worthy of respect. 
   Now consider the case of suicide. What's  interesting to notice is that both murder and suicide are at odds with the categorical imperative, and for the same reason. We often think of murder and suicide as radically different acts, morally speaking. Killing someone else deprives him of his life against his will, while suicide is the choice of the person who commits it. But Kant's notion of treating humanity as an end puts murder and suicide on the same footing. If I commit murder, I take someone's life for the sake of some interest of my own---robbing a bank, or consolidating my political power, or giving vent to my anger. I use the victin as a means, and fail to respect his or her humanity as an end. This is why murder violates the categorical imperative. 
   For Kant, suicide violates the categorical imperative in the same way. If I end my life to escape a painful condition, I use myself as a means for the relief of my own suffering. But as Kant reminds us, a person is not a thing, "not something to be used merely as a means." I have no more right to dispose of humanity in my own person than in someone else. For Kant, suicide is wrong for the same reason that murder is wrong. Both treat persons as things, and fail to respect humanity as an end in itself.
   The suicide example brings out a distinctive feature of what Kant considers the duty to respect our fellow human beings. For Kant, self-respect and respect for other persons flow from one and the same principle. The duty of respect is a duty we owe to persons as rational beings, as bearers of humanity. It has nothing to do with who in particular the person may be. 
   There is a difference between respect and other forms of human attachment. Love, sympathy, solidarity, and fellow feeling are moral sentiments that draw us closer to some people than to others. But the reason we must respect the dignity of persons has nothing to do with anything particular about them. Kantian respect is unlike love. it's unlike sympathy. It's unlike solidarity or felow feeling. These reasons for caring about other people have to do with who they are in particular. We love our spouses and the members of our family. We feel sympathy for people with whom we can identify. We feel solidarity with our friends and comrades.
   But Kantian respect is respect for humanity as such, for a rational capacity that resides, undifferentiated, in all of us. This explains why violating it in my own case is as objectionable as violating it in the case of someone else. It also explains why the Kantian principle of respect lends itself to doctrines of universal human rights. For Kant, justice requires us to uphold the human rights of all persons, regardless of where they live or how well we know them, simply because they are human  beings, capable of reason, and therefore worthy of respect. 

                       MORALITY AND FREEDOM 

   We can now see the link, as Kant conceives it, between morality and freedom. Acting morally means acting out of duty --- for the sake of the moral law. The moral law consists of a categorical imperative, a principle  that requires us to treat persons with respect, as ends in themselves. Only when I act in accordance with the categorical imperative am I acting freely. For whenever I act according to a hypothetical imperative am I acting freely. For whenever I act according to a hypothetical imperative, I act for the sake of some interest or end given outside of me. But in that case, I'm not really free ; my will is determined not by me, but by outside forces --- by the necessities of my circumstances or by the wants and desires I happen to have. 
   
   I can escape the dictates of nature and circumstances only by acting autonomously, according to a law I give myself. Such a law must be unconditioned by my particular wants and desires.  So Kant's demanding notions of freedom and morality are connected. Acting freely, that is, autonomously, and acting morally, according to the categorical imperative, are one and the same. 
   This way of thinking about morality and freedom leads Kant to his devastating critique of utilitarianism. The effort to base morality on some particular interest or desire (such as happiness or utility) was bound to fail. "For what they discovered was never duty, but only the necessity of acting from a certain interest." But any principle based on interest" was bound to be always a conditioned one and could not possibly serve as a moral law." 

CATEGORICAL vs HYPOTHETICAL IMPERATIVES

  Kant distinguishes two ways that reason can command the will, two different kinds of imperative. One kind of imperative, perhaps the most familiar kind, is a hypothetical imperative. Hypothetical imperatives use instrumental reason : If you want X, then do Y. If you want a good business reputation, then treat your customers honestly. 
   
   Kant contrasts hypothetical imperatives, which are always conditional, with a kind of imperative that is unconditional : a categorical imperative. "If the actin would be good solely as a means to something else," Kant writes,"the imperative is hypothetical. If the action is represented as good in itself, and therefore as necessary for a will which of itself accords with reason, then the imperative is categorical." The term categorical may seem like jargon, but it's not that distant from our ordinary use of the term. By "categorical," Kant means unconditional. So, for example, when a politician issues a categorical denial of an alleged scandal, the denial is nit merely emphatic ; it's unconditional --- without any loophole or exception. Similarly, a categorical duty or categorical right is one that applies regardless of the circumstances. 
   For Kant, a categorical imperative commands, well, categorically ---- without reference to or dependence on any further purpose. "It is concerned not with the matter of the action and its presumed results, but with its form, and with the principle from which it follows. And what is essentially good in the action consists in the mental disposition, let the consequences be what they may." Only a categorical imperative, Kant argues, can qualify as an imperative of morality.
   The connection among the three parallel contrasts now comes into view. To be free in the sense of autonomous requires that I act not out of a hypothetical imperative but out of a categorical imperative.

 WHAT THE HELL IS THE CATEGORICAL IMPERATIVE 

   This leaves one big question : What is the categorical imperative, and what does it command of us ? Kant says we can answer this question from the idea of "a practical law that by itself commands absolutely and without any further motives." We can answer this question from the idea of a law that binds us as rational beings regardless of our particular ends. So what is it ?
   Kant offers several versions or formulations of the categorical imperative, which he believes all amount to the same thing. 


Categorical imperative I : Universalize your maxim

   The first version Kant calls the formula of the universal law : "Act only on that maxim whereby you can at the same time will that it should become a universal law." By "maxim," Kant means a rule or principle that gives the reason for your action. He is saying, in effect, that we should act only on principles that we could universalize without contradiction. To see what Kant means by this admittedly abstract test, let's consider a concrete moral question : Is it ever right to make a promise you know you won't be able to keep ?

   Suppose I am in desperate need of money and so ask you for a loan. I know perfectly well that I won't be able to pat it back anytime soon. Would it be morally permissible to get the loan by making a false promise to repay the money promptly, a promise I know I can't keep ? Would a false promise be consistent with the categorical imperative ? Kant says no, obviously not. The way I can see that the false promise is at odds with the categorical imperative is by trying to universalize the maxim upon which I'm about to act. 

   What is the maxim in this case ?  Something like this : "Whenever someone needs money badly, he should ask for a loan and promise to repay, even though he knows he won't be able to do so." If you tried to universalize this maxim and at the same time to act on it, Kant says, you would discover a contradiction : If everybody made false promises when they needed money, nobody would believe such promises. In fact, there would be no such thing as promises ; universalizing the false promise would undermine the institution of promise - keeping. But then it would be futile, even irrational, for you to try to get money by promising. This shows that making a false promise is morally wrong, at odds with the categorical imperative.
   Some people find this version of Kant's categorical imperative unpersuasive. The formula of the universal law bears a certain resemblance to the moral bromide grown-ups use to chastise children who cut in line or speak out of turn : "What if everybody did that ?" If everybody lied, then no one could rely on anybody's word, and we'd all be worse off. If this is what Kant is saying, he is making a consequentialist argument after all --- rejecting the false promise not in principle, but for its possibly harmful effects or consequences. 
   No less a thinker than John Stuart Mill leveled this criticism against Kant. But Mill misunderstood Kant's point. For Kant, seeing whether I could universalize the maxim of my action and continue acting on it is not a way of speculating about possible consequences. It is a test to see whether my maxim accords with the categorical imperative. A false promise is not morally wrong because, writ large, it would undermine social trust (though it might well do so.) It is wrong because, in making it, I privilege my needs and desires (in this case, for money) over everybody else's. The universalizing test points to a powerful moral claim : it's a way of checking to see if the action I am about to undertake puts my interests and special circumstances ahead of everyone else's.