Can Loyalty Override Universal Moral Principles ?

                               Brothers' Keepers I : The Bulger Brothers 

     A recent test of loyalty's moral weight involves two brotherly tales : The first is the story of William and James "Whitey" Bulger. Bill and Whitey grew up together in a family of nine children in a South Boston housing project. Bill was a conscientious student who studied the classics and got a law degree at Boston College. His older brother,Whitey, was a high school dropout who spent his time on the streets committing larceny and other crimes. 
   Each rose in his respective world. William Bulger entered politics, became president of the Massachusetts State Senate (1978-1996) , then served for seven years as president of the University of Massachusetts. Whitey served time in federal prison for bank robbery, then rose to become leader of the ruthless Winter Hill Gang, an organized crime group that controlled extortion, drug deals, and other illegal activities in Boston.  Charged with nineteen murders, Whitey fled to avoid arrest in 1995. He is still at large, and occupies a place on the FBI's "Ten Most Wanted" list. 
   Although William Bulger spoke with his fugitive brother by phone, he claimed not to know his whereabouts, and refused to assist authorities in finding him. When William testified before a grand jury in 2001, a federal prosecutor pressed him without success for information on his brother. "So just to be clear, you felt more loyalty to your brother than you did to the people of the Commonwealth of Massachusetts ?"
   "I never thought about it that way," Bulger replied. "But I do have an honest loyalty to my brother, and I care about him. . . It's my hope that I'm never helpful to anyone against him . . . I don't have an obligation to help everyone catch him."
   In the taverns of South Boston, patrons expressed admiration for Bulger's loyalty. "I don't blame him for not telling on his brother," one resident told The Boston Globe. "Brothers are brothers. Are you going to squeal on your family ?" Editorial boards and newspaper reporters were more critical. "Instead of taking the righteous road," one columnist wrote,"he chose the code of the street." Under public pressure for his refusal to assist in the search for his brother, Bulger resigned as president of the University of Massachusetts in 2003, though he was not charged with obstructing the investigation. 
  Under most circumstances, the right thing to do is to help bring a murder suspect to justice. Can family loyalty override this duty ? William Bulger apparently thought so. But a few years earlier, another figure with a wayward brother made a different call. 

                         Brothers' Keepers II : The Unabomber

   For more than seventeen years, authorities had tried to find the domestic terrorist responsible for a series of package bombs that killed three people and injured twenty-three others. Because his targets included scientists and other academics, the elusive bomb maker was known as the Unabomber. To explain the cause behind his deeds, the Unabomber posted a thirty-five-thousand-wordanti-technology manifesto on the Internet, and promised to stop bombing if The New York Times and The Washington Post both printed the manifesto, which they did. 
   When David Kaczynski, a forty-six-year-old social worker in Schnectady, New York, read the manifesto, he found it eerily familiar. It contained phrases and opinions that sounded like those of his older brother, Ted, age fifty-four, a Harvard-trained mathematician turned recluse. Ted despised modern industrial society and was living in a mountain cabin in Montana. David had not seen him for a decade. 
   After much anguish, in 1996 David informed the FBI of his suspicion that the Unabomber was his brother. Federal agents staked out Ted Kaczynski's cabin and arrested him. Although David had been given to understand that prosecutors would not seek the death penalty, they did. The prospect of bringing about the death of his brother was an agonizing thought. In the end, prosecutors allowed Ted Kaczynski to plead guilty in exchange for a sentence of life in prison without parole. 
   Ted Kaczynski refused to acknowledge his brother in court and, in a book manuscript he wrote in prison, called him "another Judas Iscariot." David Kaczynski tried to rebuild his life, which was indelibly marked by the episode. After working to spare his brother the death penalty, he became a spokesman for an anti-capitalpunishment group. "Brothers are supposed to protect each other," he told one audience, describing his dilemma, "and here, perhaps, I was sending my brother to his death." He accepted the $1 million reward offered by the Justice Department for helping apprehend the Unabomber, but gave most of it to the families of those killed and injured by his brother. And he apologized, on behalf of his family, for his brother's crimes. 
   What do you make of the way William Bulger and David Kaczynski contended with their brothers ? For Bulger, family loyalty outweighed the duty to bring a criminal to justice ; for Kaczynski, the reverse. Perhaps it makes a moral difference whether the brother at large poses a continuing threat. This seemed to weigh heavily for David Kaczynski : "I guess it's fair to say I felt compelled. The thought that Another person would die and I was in a position to stop that --- I couldn't live with that."
   However you judge the choices they made, it is hard to read their stories without coming to this conclusion : the dilemmas they faced make sense as moral dilemmas only if you acknowledge that the claims of loyalty and solidarity can weigh in the balance against other moral claims, including the duty to bring criminals to justice. If all our obligations are founded on CONSENT, or on UNIVERSAL DUTIES WE OWE PERSONS AS PERSONS, it's hard to account for these fraternal predicaments. 

                         JUSTICE AND THE GOOD LIFE

   We've now considered a range of examples meant to challenge the contractarian idea that we are the authors of the only moral obligations that constrain us : 
   1. public apologies and reparations 

   2. collective responsibility for historical injustice 

   3. the special responsibilities of family members, and fellow citizens, for one another  

  4. solidarity with comrades 

   5. allegiance to one's village, community,or country

   6. patriotism

   7. ride and shame in one's nation or people

  8. fraternal and filial loyalties. 

The claims of solidarity seen in these examples are familiar features of our moral and political experience. It would be difficult to live, or to make sense of our lives, without them. But it is equal difficult to account for them in the language of MORAL INDIVIDUALISM.  They can't be captured by an ethic of consent. That is, in part, what gives these claims their moral force. They draw on our encumbrances. They reflect our nature as storytelling beings, as situated selves.
   What, you may be wondering, does all this have to do with justice ? To answer this question, let's recall the questions that led us down this path. We've been trying to figure out whether all our duties and obligations can be traced to an act of will or choice. We've argued that they cannot ; obligations of solidarity or membership may claim us for reasons unrelated to choice --- reasons bound up with the narratives by which we interpret our lives and the communities we inhabit. 
   What exactly is at stake in this debate between the narrative account of moral agency and the one that emphasizes will and consent ? One issue at stake is how you conceive human freedom. As you ponder the examples that purport to illustrate obligations of solidarity and membership, you might find yourself resisting them. If you are lie many of my friends, you might dislike or distrust the idea that we're bound by ties we haven't chosen. This dislike might lead you to reject the claims of patriotism, solidarity,collective responsibility, and so on ; or to cast these claims as arising from some form of consent.  It's tempting to reject or to recast these claims because doing so renders them consistent with the familiar idea of freedom. This is the idea that says we are UNBOUND by any moral ties we haven't chosen ; to be free is is to be the author of the only obligation that constrains us. 
   It's been suggested, through these and other examples we consider throughout this whole discussion, that this conception of freedom is flawed. But freedom is not the only issues at stake here. Also at stake is how to think about justice. 
   Recall the two ways of thinking about justice we've considered. For Kant and Rawls, the right is prior to the good. The principles of justice that define our duties and rights should be neutral with respect to competing conceptions of the good life. To arrive at the moral law, Kant argues, we must abstract from our contingent interests an ends. To deliberate about justice, Rawls maintains, we should set aside our particular aims, attachments, and conceptions of the good. That's the point of thinking about justice behind a veil of ignorance. 
   This way of thinking about justice is at odds with Aristotle's way. He doesn't believe that principles of justice can or should be neutral with respect to the good life. To the contrary, he maintains that one of the purposes of a just constitution is to form good citizens and to cultivate good character. He doesn't think it's possible to deliberate about justice without deliberating about the meaning of the goods -- the offices, honors, rights, and opportunities--that societies allocate. 
   One of the reasons Kant and Rawls reject Arirtotle's way of thinking about justice is that they don't think it leaves room for freedom. A constitution that tries to cultivate good character or to affirm a particular conception of the good life risks imposing on some the values of others. It fails to respect persons as free and independent selves, capable of choosing their ends for themselves. 
   If Kant and Rawls are right to conceive freedom in this way, then they are right about justice as well. If we are freely choosing, independent selves, unbound by moral ties antecedent to choice, then we need a framework of rights that is neutral among ends. If the self is prior to its ends, then the right must be prior to the good.
   If, however, the narrative conception of moral agency is more persuasive, then it may be worth reconsidering Aristotle's way of thinking about justice. If deliberating about my good involves reflecting on the good of those communities with which my identity is bound, then the aspiration to neutrality may be mistaken. It may not be possible, or even desirable, to deliberate about justice without deliberating about the good life.
   The prospect of bringing the conceptions of the good life into public discourse about justice and rights may strike you as less than appealing --even frightening. After all, people in pluralist societies such as ours disagree about the best way to live. Liberal political theory was born as an attempt to spare politics and law from becoming embroiled in moral and religious controversies. The philosophies of Kant and Rawls represent the fullest and clearest expression of that ambition. 
   But this ambition cannot succeed. Many of the most hotly contested issues of justice and rights can't be debated without taking up controversial moral and religious questions. In deciding how to define the rights and duties of citizens, it's not always possible to set aside competing conceptions of the good life. And even when it's possible, it may not be desirable. 
   Asking democratic citizens to leave their moral and religious convictions behind when they enter the public realm may seem a way of ensuring toleration and mutual respect. In practice, however, the opposite can be true. Deciding important public questions while pretending to a neutrality that cannot be achieved is a recipe for backlash and resentment. A politics emptied of substantive moral engagement makes for an impoverished civic life. It is also an open invitation to narrow, intolerant moralisms. Fundamentalists rush in where liberals fear to tread.