Thursday, May 5, 2011

Ethical Neutrality and the State: Thoughts on my previous blog

Several of you raised good questions about my previous blog. Let me try to respond.

The core problem as John points out is how to reconcile majority rule with constitutionalism, especially in a pluralist society. I do not claim to have a solution to the problem, this is my best effort at addressing the problem. In fact, anyone who claims they know the truth about how to solve this problem or about the nature of what is the good life that we all ought to live is either lying or arrogant. No one knows, and that is my starting point.

I do not think there is no connection between law and morality. The likes of Augustine, Thoreau, and Martin Luther King, Jr. have all discussed the relationship between the two. Bu in asking whether one can use the law to impose morality, there are two questions. The first is the efficacy of using the law to impose moral beliefs or your or the majority’s conception of the good upon others. History is littered with examples of that from the Spanish Inquisition to the war on drugs to Prohibition. Seeking to force others to believe what you believe either is unsuccessful or results in a loss of the law’s legitimacy or a backlash against compliance.

The second issue is should the law reflect moral values? I would argue that in a pluralist society the answer is that the law enforces a thin as opposed to a thick theory of the moral good. A thick theory of the good is the state or the government imposing a particular view of the type of life all of us should live. This is the type of theory of the good the Puritans asserted. A thin theory of the good suggests that the state or the government establishes certain basic values regarding liberty and equality, for example, but much beyond that individuals are left to their own to define the good for themselves. This is what a free and pluralist society does.

A pluralist liberal society begins with a simple proposition–there is no certainty over the thick theory of the good. We instead intrust to individuals within a broad framework of the law the right to make their own moral choices, especially over matters that are in dispute. Because we discuss on matter of faith the law remains silent on these issues, and issues are to make their own choices while respecting the rights of others to make theirs.

When it comes to the issue of abortion, this is not a scientific issue but instead a matter first of theology and then ethics. There is no scientific answer to when life begins. This is a matter of religious faith and I may not choose to agree with the theology that another holds.

To say life begins at conception is a meaningless and empty statement. Just because something is alive and human does not give it moral rights. My kidney is alive and human, does it have moral rights? Normative choices have to be made regarding when we ascribe moral or ethical rights to something.

But having said that something is alive and human, still does not tell us anything. We then need to decide about what rights exist and how they compete with the rights of others. Given that, it is still not clear that something alive and human has moral rights that outweigh that of a woman. Thus, within a pluralist society, woman get to make the call about how to resolve a moral issue in consultation with a doctor or others as they choose.

My broader point then is that we do not know what is right, a pluralist society operates with a thin theory of the good, and we defer to women to make their choices about abortion given that no scientific fact can resolve the issue and the moral and theological issues are contested matters.

Finally, as I have argued in a couple of contexts and have been misconstrued intentionally on this, one of the hallmarks of ethical theory and a pluralist society is that we need to have a choice to hold people responsible for their actions. There are many things that I might find objectionable but others should be allowed to do those things and then be required to accept the consequences for their choices. Political society is clearly free to say many things such as spousal abuse are wrong and punish because of the violence against others. Here the party prosecuted has a choice and has violated a norm and therefore should be held responsible. Given that the issue of fetal rights is a matter of major dispute, we cannot impose our vision of the good upon others and second, we cannot take away the ability of women to make a choice. Some may chose wrong or contrary to what I would do but in a free society that values autonomy, this choice is what forces women to take into consideration the moral gravity of the situation.

I am quite certain I have not resolved all the issues posed here.


  1. Prof. Schultz addresses here the second part of what I intended to post, but did not have time to adequately formulate.

    I used the two examples of abortion and smoking in a privately-owned public accomodation not because I was very interested in either issue itself (at least for purposes of the particular post) but rather as a comparison of basic problems and the efficacy of public policy in addressing them.

    Even assuming more agreement about prohibiting abortion than there is, I just don't see how it could be effectively prohibited, and so it stikes me as the kind of symbolic and harassing disapproval which doesn't end up preventing very much. In other words, if we made most abortions illegal, I strongly believe we would have a lot of illegal abortions. And worse, I would expect selective and unfair enforcement. In my opinion, we already have too much of this type of regulation in too many areas.

    As for smoking in enclosed "public" space, the regulation has been obviously effective and behavior has changed. I am not commenting about the down-sides like lost revenue for Sue Jeffers because 1) I don't know how much or how long that will be a problem, 2) public smoking is such an obvious nuisance that it surprises me that it was ever tolerated as much as it was, and thus 3) lost revenue seems (mostly) irrelevant to the control of negative behavioral externalities.

    I appreciate the "thin" and "thick" distinctions. I would further describe this distinction as applying to the old rubric of the law addressing those matters which most directly and immediately are breaches of the "King's Peace." While I have often considered writing a book on this, I will just make this one comment. Judge Bork equates Roe v. Wade with Dred Scot as a decision that likewise writes legal personhood for classes of humans out of the law. While that is a fair point, I see it differently insofar the non-personhood of African descendants did present an immediate and direct consequence for all of American society. The non-personhood of the unborn child, on the other hand, does not set up classes of persons and non-persons in any way analogy to the master/slave classes. Mothers do not have superior rights over all unborn children, just the one particular unborn child. While I respect the Catholic doctrine of balancing risks and concerns for both the mother and unborn child in an emergency situation, I don't see that as the way I would necessarily decide. Furthermore, I can easily anticipate situations where the fine balancing just wouldn't work for me - where I would find being second-guessed about favoring my/my SO's welfare a particularly offensive intrusion.