Chapter 9 concluded with the requirement that an adequate account of social rules must be able explain how rule-based reasons can generally override, and yet be somehow responsive to, the other kinds of normative reasons we consider in our deliberations. If this is required of an account purporting to explain how social rules can be rational, what is required of an account that purports to explain their specifically moral character?
The key concern here is what the normative authority of moral rules consists in. Gaus identifies two conditions that such rules must satisfy:
1) The justification condition: the rule must pass justificatory muster from the perspective of free and equal persons addressing each other; and
2) The minimal effectiveness condition: the rule must already command some degree of compliance among a significant number of members of the group to which it is taken to apply.
The requirement that a moral rule satisfy both conditions, in turn, places certain constraints on the business of moral theorizing. Gaus has already claimed that especially austere and rigorist forms of deontolotical ethics that neglect what we might call the holistic character of moral deliberation – the ways in which deontic (rule-based) reasons interact with other species of normative reasons (here Gauss focuses primarily on reasons of the instrumentalist/consequentialist variety; a full account would presumably specify the role of aretaic reasons as well) in context of our reasoning on ethical and political matters. At the same time, his account of the “strong” character of the relevant rules signals a concern about ethical theories that reduce certain moral concepts to how they are understood within the concept of a particular conceptual scheme, cultural order, or set of social conventions.
Moral rules, and the deontic reasons they generate, must be exhibit some degree of responsiveness to the traditions and practices of a given group:
Unless our analysis of “true morality” connects up with what actual agents see as morality, our philosophical reflections will not address our pretheoretical worries. We come to philosophy worried about the nature of morality, moral relations between free and equal people, and the justification of moral claims. If we develop a philosophical account of morality that tells us what is “right and wrong” that treats moral and conventional rules the same, or sees morality as just another form of prudence, or insists that morality is entirely a matter of reason and so emotion is simply a threat to sound moral judgment – then our account is too far distant from our actual moral concepts to enlighten us about our initial concerns (OPR 174).
Yet such rules cannot be understood as mere codifications of existing practice; part of the business of making such norms explicit and subjecting them to rational scrutiny from the perspective of free and equal persons addressing each other is to “test” their justificatory adequacy:
The wonderful work in moral psychology of the last twenty years has, I fear, tempted some to think that moral philosophy is essentially a sort of systemization of moral psychology and positive morality. In the end, however, we cannot rest content with understanding “moral” in a quasi-anthropological sense to refer to what people themselves take (and have taken) to be moral…it is important to stress that although the rules of social morality must be social rules, and so exist, this is simply a necessary, and by no means a sufficient, condition for a rule to be part of “true social morality.” We begin with existing social rules; we do not end there (OPR 177).
The chapter concludes then, with a desideratum: a satisfactory account of the authority of moral rules must account for employments of moral concepts that can find the fundamental structures of a given community lacking. Gaus calls such employments “transcendent” – not in the regulist sense of specifying rules that can be instantiated by all agents at all times and places, but rather in a critical sense that renders vivid the distinction between what we as a group take to be morally correct and what is morally correct from the perspective of free and equal persons giving and asking each other for reasons.
I’ll conclude for the moment with a critical/comparative point. The goal of explaining how moral norms – whether implicit, in patterns of behavior in which we are held responsible for our actions, or explicit, in the form of rules – might satisfy both the justificatory and minimal effectiveness conditions has increasingly been cast in terms of the practice of giving and asking for reasons among free and equal participants. There appears to be a significant degree of convergence on the idea that there is something about the structure of this practice that gives us a special grasp on the character of normative authority. This is seen, for instance, in contractualist accounts of justice (and constructivist ethical theories more broadly). It also has strong affinities with developments in the later critical theory of the Frankfurt School, which has turned its attention to how participants in certain forms of discursive activity incur special normative commitments. It also dovetails with significant new work by pragmatist figures like Robert Brandom (e.g. his Making it Explicit), which attempt to account for what Gaus calls “transcendent” employments of moral concepts in the perspectival features of discourse. Three major currents in contemporary intellectual life – Anglophone political philosophy, Frankfurt critical theory, and American pragmatism – are all devoting significant attention to the nature of discursive social practice. Might we be in the midst of something worth calling a “social-practical turn” in moral and political theorizing?