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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).

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Human beings are social and rule-following creatures.  Gaus has been arguing that our status as rule-followers is central to explaining our social character – that the development of cheater detection and punishment was necessary for the evolution of complex social orders.

The preceding chapter closed with the claim that the relevant evolutionary and psychological literatures have disclosed a kind of pluralism to our rule-following: we operate with many kinds of rules, acquired at different points in our ethical and social formation, which interact with our affective and cognitive equipment in different ways.  This is something which, he claimed, philosophy must take into account.

This accounting begins with how we understand the rationality of rule-following behavior.  Here Gaus puts a new spin on an old philosophical problem, that of the insight of Hobbes’ Fool: “that reason can only tell us how to achieve our own goals and, so, reason can never instruct us to set aside our concerns to conform to social rules” (OPR, 132).  The family of responses to this problem with which Gaus takes issue are those that explain the rationality of social rules through reference to their modally instrumental and morally consequentialist character: the rationality of rules inheres in their instrumentality to the achievement of our preferred outcomes.  Gaus’ concern is that such strategies cannot account for specifically deontic forms of rule-following that are both necessary for social cooperation and resistant to explication in instrumentalist and consequentialist terms.  Hobbes’ old problem now serves as the starting point for a new one: how we can understand a plurality of moral rule-following behaviors (comprising both instrumental/consequentialist and deontic forms) as rational.

Gaus approaches the problem in four steps:

First, an argument that specifically deontic rules are indeed resistant to explanation in insturmentalist and consequentialist terms;

Second, an argument that deontic rules provide us, in nonmysterious ways, with reasons to act;

Third, an argument that the rationality of both instrumental/consequentialist and deontic/nonconsequentialist rules can be encompassed within one over-arching account of rule-following (although this is not Gaus’ preferred view); and

Fourth, a claim that (I thru III) tell us something important about the social character of morality.

(I) Here Gaus considers three strategies that seek to explain deontic rules in instrumental terms, i.e. in terms of their relationship to an individual’s goals, ends and purposes.  The first casts rules as rational conditional policies that agents might adopt as a means to goal pursuit over the long-term.  For Gaus, such policies are “weak rules” that can override short-term goals within the context of an agent’s deliberations.  But they do not require an agent to abandon an agent’s best, long-term, all-things-considered reasons to do what one thinks best.  The “weak” status of such conditional policies, he claims, fail to capture the roles played by social rules in a “stronger” sense that demand compliance even when this does not promote an agent’s goals.

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Summary

We saw in section 2.5 that Gaus gives his refutations of attempts to derive principles of morality with revisionist accounts of rational choice in interactive contexts (again, game theoretic contexts). In section 2.6 Gaus considers what he takes to be the remaining option for the instrumentalist program. Here Gaus starts by claiming that if the instrumentalist employs the orthodox account of rational choice in games, then in order to try to explain moral norms as the product of instrumental rationality she needs to consider repeated interactions. In game theoretic parlance, the instrumentalist needs to employ the folk theorem.

The folk theorem, or folk theorems (some authors use the singular, other the plural), is actually a body of results in game theory. What these theorems tells us is that in a game repeated indefinitely often, if the players’ probabilities of continued play are sufficiently high (probabilities known as discount factors), then any outcome where their payoffs are all at least as great as their payoffs at a minimax point can be sustained in equilibrium. The minimax point is an outcome where all try to keep their partners’ payoffs as low as possible, and one can think of this as an outcome of “mutual punishment”. If, for example, the base game is the 2-player Prisoners’ Dilemma (and C is cooperate and D is defect) with appropriately bounded payoffs, then all outcomes where the players’ payoffs are at least as great as the payoffs of the outcome (D,D) can be part of an equilibrium of the indefinitely repeated game. A special and particularly famous case is the outcome where a pair of fixed partners in a repeated Prisoners’ Dilemma follow the “tit for tat” strategy. (A “tit for tat” player follows C on the first round of play and then always follows the choice the partner made at the previous round.) Given appropriate discount factors, if both follow “tit for tat” then they are at an equilibrium of the repeated game where each follows C at each round, although of course of course C is never part of an equilibrium of the one shot Prisoners’ Dilemma.

The folk theorem gets its name because game theorists discussed a number of these results informally before the first relevant theorems were published. As a historical tidbit, John Nash appears to have been the first to discover a folk theorem that shows that cooperation can be sustained in equilibrium in a repeated Prisoners’ Dilemma. Nash shared this result in an unpublished 1950 correspondence. Several authors, including Sugden (Evolution of Rights, Cooperation and Welfare 1986), Skyrms (‘The Shadow of the Future’ 1998) and Binmore (Natural Justice 2005) attribute proto-folk theorem reasoning to Hobbes in his response to the Foole in Leviathan 15 and to Hume in his analysis of promises in Treatise 3.2.5. (This may make it more apparent why I connected sections 2.5 and 2.6 to the so-called reconciliation project in the post on section 2.5.) The folk theorems look like exceptionally powerful results for the instrumentalist program, and in a certain sense they are. They tell us that the members of a community can follow an equilibrium in their repeated interactions where each must follow a cooperative strategy (like C in Prisoners’ Dilemma) with those who are in “good standing” and follow a punishing strategy (like D in Prisoners’ Dilemma) with those in “bad standing”, and this appears to vindicate the instrumentalist claim that norms of social morality really are the product of instrumental rationality. Indeed, some authors even claim that Hobbes’ system of natural law is at bottom a set of rules for following equilibria of the appropriate repeated games!

However, the folk theorems are only existence theorems. They tell us that in repeated games there are equilibria of mutual cooperation, but they tell us nothing regarding how we might start to follow these equilibria. Moreover, in a sense the folk theorems prove “too much”, because they also show that in repeated interactions there are a host of other equilibria besides equilibria of mutual cooperation, and at many of these equilibria some actually exploit others a significant amount of the time. Why should rational agents settle into “nice” equilibria of mutual cooperation rather than more “nasty” equilibria where some take advantage of others or even “state of nature” equilibria where no one cooperates with anyone else?

The instrumentalists who appeal to the folk theorem turn to evolution, and more specifically cultural evolution, as a means of explaining the appropriate equilibrium selection in the repeated games. As Gaus notes, Axelrod brought this idea to prominence in his pioneering study Evolution of Cooperation (1984). As Gaus also notes, many mistakenly concluded from Axelrod’s findings that “tit for tat” is the “correct” strategy for playing repeated Prisoners’ Dilemmas. In fact, no one strategy can be the uniquely rational strategy for playing repeated Prisoners’ Dilemma. There is not even a unique strategy for following a cooperative equilibrium of repeated Prisoners’ Dilemma. Gaus notes that the “grim” strategy also characterizes a cooperative equilibrium. In fact, there are many other strategies besides “tot for tat” and “grim” that characterize cooperative equilibria.

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Summary

Sections 2.5 and 2.6 form the core argument of this chapter. These sections can be studied independently of each other, but I think it worthwhile to first take a look at how they work together to support Gaus’ main conclusion of Chapter 2, which is that the instrumentalist program fails. Gaus constructs a dilemma for the instrumentalist: In order to complete the instrumentalist project, one must either (1) adopt some reformed account of rational decisions in interactive contexts (formally, game theoretic contexts), or (2) show that societies will settle into following rules for guiding conduct in repeated interactions that coincide with moral rules, and neither (1) nor (2) is a viable option. Gaus argues that (1) and (2) are both nonviable options in sections 2.5 and 2.6, respectively.

I like to relate the instrumentalist program to the so-called reconciliation project, the attempt to show that acting morally is compatible with rational prudence. There are at least three nonexclusive ways one can try to complete the reconciliation project, which can be illustrated with alternative responses to a moral skeptic like Hobbes’ Foole (Leviathan 15) who claims that at least some of the time rational prudence requires one to violate moral requirements. In response, one can argue either that:

(a) The skeptic overlooks certain goods intrinsic to the practice of morality (a response in the tradition of Plato, Aristotle and Aquinas), or:

(b) The skeptic overlooks some of the options available both to her and to those with whom she interacts (a response in the tradition of Hobbes, Hume, and in our time Sugden, Skyrms and Binmore), or:

(c) The skeptic adopts the wrong account of rational choice in interactive contexts (a response in the new tradition initiated by McClennen and Gauthier)

Responses (b) and (c) obviously dovetail with Gaus’ sections 2.5 and 2.6. Of course, Gaus is discussing the instrumentalist program and not the reconciliation project, but it might be worth noting here that Gaus says little in Chapter 2 regarding supposed intrinsic goods of moral practice, and of course many including skeptics like the Foole deny there are any such goods. In any event, while I think it’s conceivable that an instrumentalist could believe in some goods intrinsic to moral practice (say, if one believes that following moral requirements is a necessary means towards achieving the desired end of reaching Heaven in the afterlife), Gaus keeps his focus in these sections on external goods like others’ labor that one could in principle obtain by means other than following moral requirements, and are more commonly associated with economic analysis.

In Section 2.5 Gaus gives his specific arguments against revisionist theories of game theoretic rationality, and he makes it clear that these arguments resemble some that have appeared before. (Perhaps I should add that I agree with pretty much all of Gaus’ discussion in this section.) Interestingly, Gaus considers only two specific proposals for a revisionist theory, namely, the evidential decision theory of Richard Jeffrey and the past-formed-disposition rule of Gauthier that I regard as a special case of Gauthier’s constrained maximization (Morals By Agreement 1986, Chapter V). I think Gaus believes that the two specific proposals considered here suffice to illustrate a moral general argument: Proposals for a reformed account of game theoretic rationality require us to give up certain fundamental dogmas of instrumental rationality (discussed in section 4.3) we really should not give up, so the revisionist program should be rejected.

Evidential decision theory recommends following C (cooperate) rather than D (defect) in Prisoners’ Dilemma when one believes one’s own choice is sufficiently correlated with her partner’s choice, same as evidential decision theory recommends choosing only the opaque box in Newcomb’s problem. This is tantamount to treating one’s own choice as if this choice is not causally independent of the choices of one’s partners. But Gaus, following Skyrms, reminds us that the players’ choices in a Prisoners’ Dilemma are causally independent (p. 76). Here is another way to another way to make the point (though Gaus does not explicitly make the point this way): To claim that one should choose a strategy on the grounds that this strategy is probabilistically correlated with the strategy one’s partner chooses is to in effect deny that the Prisoners’ Dilemma is a game in strategic form. (By definition, in a strategic form game the players must select their strategies without being able to observe the selections of their partners.) In this context, evidential decision theory would recommend that we don’t follow strictly dominant strategies, but we really have no good reason to give up on dominance reasoning. (Perhaps I should add that Jeffery himself did not think evidential decision theory recommends cooperation in the one-shot Prisoners’ Dilemma, though some evidential decision theorists do think this.)

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Summary
Gaus begins this section by describing a Kantian proposal for how to reconcile the freedom and equality of persons with the authority of morality. First, we bracket our private ends-those things that divide us. Second, we focus on those common considerations that can serve as the basis for justifications of moral requirements. Rawls famously formalized this two-step procedure with the veil of ignorance and the idea of a list of primary goods essential to the exercise and development of the two moral powers. But because the Kant-Rawls solution involves bracketing everything that divides us–most importantly, our different comprehensive doctrines–there is no real evaluative diversity in the original position. The original position, as many critics have pointed out, is not a problem of collective choice, but a problem of individual choice since there is only a single perspective that remains after the veil of ignorance has been imposed. For Gaus, this creates two big problems.

First, how do we know that we have sufficient reason to follow the rules of morality if those rules have been determined only by abstracting away from those values (i.e. our comprehensive doctrines) that we care deeply about? Merely showing that we can get a set of justified moral rules by bracketing what divides us doesn’t establish that we have good reasons to follow these rules when we consider our full set of reasons. This is the problem of stability. Gaus argues the later Rawls recognized this problem, and this explains Rawls’s claim in Political Liberalism that the rules generating by the freestanding argument in the original position provide only a pro tanto justification–the full justification of those rules is not achieved until each person sees that he or she has reasons from within his or her wider doctrine to endorse the rules. When everyone achieves this reconciliation, we famously have an overlapping consensus on a public conception of justice.

But Rawls’s solution appears to ignore (or at least downplay) a second problem: indeterminacy. Rawls gets a unique set of principles out of the original position by eliminating all the evaluative diversity from that choice procedure. But once we let the evaluative diversity back in, either via the overlapping consensus, or in some other way, Gaus argues we are bound to get quite a bit of indeterminacy regarding the publicly justifiable rules. There just isn’t enough common ground, Gaus believes, to derive anything like a uniquely justified list of moral rules. Rawls saw indeterminacy as a potentially fatal problem, but Gaus encourages us to embrace it as the inevitable result of respecting evaluative diversity while searching for publicly justifiable moral rules. If we consider what could be justified to members of the public, Gaus suggests that what we will get is a non-empty and non-singular set of optimal eligible proposals, and of course there will be disagreement regarding the ranking of these different proposals.

So how do we solve this problem of indeterminacy? Here is where Hume provides a helping hand. Instead of following Kant or Rawls and looking for ways to exclude evaluative diversity and thereby avoid indeterminacy, Gaus urges us to draw on the resources of a more Humean approach to social morality. In particular, Gaus says we can draw on the idea that moral norms evolve and become stable as a solution to the large-scale coordination problem of how to live together cooperatively in a way that can benefit everyone. Without this kind of convergence–for example, convergence on rules over property rights and how they are to be respected–social life would be filled with costly and inefficient conflicts. So even if idealized members of the public will not converge on a unique set of moral rules due to evaluative diversity, real people will inevitably do so as a result of evolutionary pressures to reach an equilibrium. This evolutionary perspective also helps to dissolve the puzzle of mutual authority mentioned in the previous sections. Social morality is a form of decentralized social authority between many people, and not some puzzling form of mutual authority between two agents.

Gaus’s brilliant solution to the puzzle of how morality’s authority can be reconciled with our freedom and equality is thus a reconciliation of Kantian and Humean perspectives. A publicly justified morality is a set of moral rules that is both: (1) an equilibrium solution that has evolved to help individuals solve their large-scale coordination problem of social cooperation, and (2) is among the members of the optimal eligible set that could be justified to idealized members of the public. As Gaus puts it, without the evolutionary story, the Kantian approach is hopelessly controversial or indeterminate. But without the emphasis on public justification, evolved moral rules are merely authoritarian.

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OPR attempts to show how moral authority can is possible despite disagreement among free and equal persons about the nature of morality. To do so, we must determine what moral authority is and the challenges it raises.

Section 2 might be read as an explanation of the various notions of freedom at work in the book. The first idea that Gaus analyzes is the “presumptive” or “natural” freedom in the state of nature. On this “negative” conception of freedom, X is free when X is free from requirements to comply with the judgments of others about morality. Notice that this is not freedom from morality but freedom that obtains when one is free from the others’ varying interpretations of morality.

Gaus ties his conception of freedom to the Kantian notion of autonomy and to what Susan Wolf calls Kant’s “Reason View” where one is autonomous when she has the option to act in accord with reason. For Gaus, “a free moral person is one who acts according to her own reasoning about the demands of morality.” (15).

A justified moral order rejects the claims of natural or self-appointed authority of some over others. When citizens make unjustified demands, those that do not appeal to the reason of citizens, they are “authoritarian”. (16). For Gaus, authoritarianism is the original sin of political philosophy. The authoritarian is not only morally suspect but fails to establish authoritative claims over her compatriots, since she appeals only to her own reasons, not to others’. For Gaus, for John to treat Reba as a free and equal moral person means that he must “acknowledge a fundamental constraint on the justification of claims to moral authority over her.” (17). The political philosopher must dispel the suspicion that morality is a form of illegitimate social control to explain how such moral authority can be justified.

Gaus next introduces a contrast between two conceptions of free and equal moral persons and their connection to social morality. Gaus ascribes to prominent Kantians Tim Scanlon and Stephen Darwall what he calls the “Expansive View” where we recognize others as free and equal means by “act[ing] toward others according to principles they could not reasonably reject.” Gaus takes Darwall and Scanlon to hold that “recognizing others as free and equal immediately implies [emphasis mine] a formula for what actions are morally permissible.” Yet the Expansive View is unattractive because it loads too much of the content of morality into a conceptual claim about the nature of recognizing others as free and equal. The Expansive View is therefore too controversial to form the foundation of a justification for social morality under conditions of reasonable pluralism.

The “Restrictive View” is an alternative to the Expansive View. It holds that moral personhood “consists in the capacity to care for moral rules in such a way that one recognizes a compelling reason to abide by the rule even when such conformity does not promote one’s wants, ends, or goals.” (19). Gaus believe that he can demonstrate that the Restrictive View is an implicit part of our social practices and so is presupposed by participation in any extended system of social cooperation. Notice that Gaus endorses the Expansive View (p. 20) but that he thinks it is vital to publicly justify the Expansive View in light of the Restrictive View.

Gaus introduces two puzzles about morality authority in Section 2.3. The ideas of freedom from judgment, natural moral personhood and equality among persons raise the Puzzle of the Assertion of Authority over an Equal. The puzzle concerns not speech acts but “claims to authority over another.” The puzzle is this: How can moral equals show that they have the authority to demand that others conform to certain social rules? The second puzzle is the Puzzle of Mutual Authority which arises because all persons have the ability to acquire authority over each other despite their equality. Gaus thinks that Hobbes, Locke, Rousseau and Kant all thought the puzzles could be solved. On their view, authority among equals must be possible in order to resolve conflicts of private judgment.

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Section 1 has a simple aim: to introduce Gaus’s distinctive concept of “social morality” and to describe its central features. Social morality is “the basic framework for a cooperative and mutually beneficial social life” and “provides rules that we are required to act upon and which provide the basis for authoritative demands of one person addressed to another.” The authority relation is fleshed out in detail in Section 2. In this post, I will proceed by enumerating the core features of Gausian social morality.

Social Morality, the Definition:

Social morality is “the set of social-moral rules that require or prohibit action, and so grounds moral imperatives that we direct to each other to engage in, or refrain from, certain lines of conduct” (2).

Notice that Gaus emphasizes that he is not talking about the whole domain of the normative. Instead, his focus is on a particular kind of normativity, one that involves socially practiced demands and imperatives.

Social Morality, Feature #1: Coordination and Cooperation

An essential feature of social morality is that it serves a social function; it “has its roots in this requirement of social life.” The rules of social morality “structure social interaction.” Gaus emphasizes that social morality must have the practical function of making us better off: “certainly one of the things morality must do is allow us to live together in cooperative, mutually beneficial, social relations.” (4).

Social Morality, Feature #2: Extension and Restraint of Our Aims

The “Baier-Strawson” view of social morality is that social morality is a set of rules that allow us to live well together and that require our obedience. Social morality is contrasted with personal values or “individual ideals.” Social morality is comprised of rules that both “provide the conditions for the successful pursuit of these ideals” but also “simultaneously constrain our choices about how to pursue them.” (6).

Social Morality, Feature #3: Not Instrumental

Gaus will focus on this feature in Chapter 2 but he notes here that if we admit that social morality “has a job to perform” that we must ask whether it is merely a tool that we use for our benefit. Gaus thinks not. Instead, he will argue that we have independent reason to follow moral rules other than its coordinating function.

Social Morality, Feature #4: Imperatival

Social morality provides “the basis for issuing demands on others that they must perform certain actions.” Gaus contrasts this view of modern social morality with an ancient, Aristotelian teleological account of morality that understands moral rules in terms of the ends they promote. Setting aside the matter of whether Larmore and Sidgwick (mentioned in the book) have the history right (I suspect they don’t), the contrast is still useful: Gaus will argue that our reasons to follow social morality are not to promote our ends. This is the point of Chapter 2 and it crucial for the argument of the book.

Social Morality, Feature #5: Prescriptive (Though also Descriptive)

For Gaus, social-moral rules have a prescriptive function. They have their home in our social practices. Gaus is clear to emphasize that he rejects the simple contrast between descriptivist and prescriptivist accounts of the semantics of moral statements. Instead, following R.M. Hare, he claims that many moral statements have both elements. This key feature of social morality makes social morality a social phenomenon. In other words, part (though not all) of the essence of social-moral rules is that they are used to control others. We use moral rules to tell each other what to do. Morality, furthermore, makes “my action your business” because it assigns standing to you to make demands of me.

A critic might reply that the authority of morality is distinct from the authority of those who interpret it. But Gaus follows Hobbes and Kant in pointing out the fact that morality does not “fax its demands from above” but is instead often unclear. People disagree about what absolute or True morality consists in. As will become clear, social morality is a method of resolving disputes about what the True morality is. However, social morality’s claims must have authority that all can recognize despite their disagreements about what Morality-with-a-capital-M is. If social morality cannot ground authority despite disagreement about ultimate normativity then our social practices cannot be authoritative despite disagreement. The authority of social morality in a diverse world becomes impossible. But surely, Gaus suggests, this cannot be true.

Social Morality, Feature #6: Deference in Private Judgment

The sixth feature of social morality is that it is constituted by claims of moral authority, but moral authority understood as “a claim to deference in judgment.” In its most fundamental mode, moral authority is the authority to demand that others follow your interpretation of Morality-with-a-capital-M. Moral authority “qua moral power” (the Hohfeldian incident of a power-right) is important but this form authority is downstream from moral authority as a claim to deference in judgment.

Social Morality, Feature #7: Non-Ontological

Gaus throws away a brief line that he follows Hare in “putting aside ontological issues about the nature of morality.” It is interesting to speculate on what this might mean. In short, I think Gaus thinks that his hybrid view of social-moral statements is compatible with a range of plausible views of the metaphysics of social morality. In other words, it is compatible with a range of views about truth-makers for moral claims (or something close to this).

In sum: social morality is the set of moral rules that:

(1) Coordinate our actions and help us to cooperate;
(2) Extend and restrain our aims;
(3) Are followed for non-instrumental reasons;
(4) Consist of imperatives issued in social interaction;
(5) Are essentially prescriptive;
(6) Command deference in private judgment;
(7) Can be characterized somewhat independently of claims about moral metaphysics;

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The Order of Public Reason opens with concerns about how contemporary political philosophy is practiced. Gaus argues that political philosophers artificially divide up core questions in order to make their jobs easier. Instead, they miss vital connections between these questions. When Gaus says he is a “fox” in the fox-and-hedgehog-sense, you may want to laugh (I chuckled) but I take Gaus to mean that his method is highly eclectic in contrast to the methods of most political philosophers. One point of OPR is to show how a more holistic and comprehensive method pays off.Despite his foxy method, Gaus is explicit that OPR aims to answer a single, hedgehog’s question:

Can the authority of social morality be reconciled with our status as free and equal moral persons in a world characterized by deep and pervasive yet reasonable disagreements about the standards by which to evaluate the justifiability of claims to moral authority? (xv)

This question seems clear on its face, but in fact as we make our way through the book, it will become clear that the question refers to ideas that Gaus develops in great detail, including “authority”, “social morality”, “free and equal moral persons”, “reasonable disagreements” and “the justifiability of claims”. Nonetheless, it should be clear to the reader that Gaus intends to use a “Foxy” method to answer a Hedgehog’s question. And in fact, this is arguably the central question of political philosophy from the perspective of the social contract tradition. Gaus conceives of his project as an attempt to answer the classical asked by Hobbes, Locke, Rousseau, Kant and Rawls, and yet he thinks their questions cannot be answered without reference to philosophers and social theorists from very different traditions, like David Hume, Adam Smith and F.A. Hayek.

The preface provides us with a clear statement of how Gaus understands morality as a set of distinct domains of normative analysis. It is crucial to see at the outset that Gaus is focused on what he calls social morality. It is a bit like Tim Scanlon’s “what we owe to each other” morality, the set of social rules and practices by which we make moral demands of one another. Gaus sees social morality as essentially constituted by prescriptions about what others to do. He worries that morality can be authoritarian, that is, social morality can consist in an unjustified set of social practices of ostracism, arbitrary domination, and the like. A social order cleansed of authoritarianism, whose social morality is justified to all, is “an order of public reason.” Remember Gaus’s words: “Morality does not directly speak to us; it is other people who speak to us, asserting their views of morality as demands that we act as they see fit.”

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This post is intended to serve as a reference point for all posts relating to our reading group on Jerry Gaus’s The Order of Public Reason. Below you will find our reading schedule and discussant list. We are going to cover two sections a week for thirteen weeks. The book is long, but at this pace, you’ll only have about thirty to fifty pages of reading each week. Each discussant will cover one or two sections.

I propose that we structure the posts in the following way, though others are free to diverge from my recommendations. First, each section should have its own post that will be linked through this one as a reference point. I suggest that each post be neatly divided into an expository part and a critical part. My own preference is to summarize the section in under 1000 words and then raise 500 words of criticisms. It would also be good to structure the criticism in ways that make the section amenable to discussion. Think of questions that not only concern you but that might concern others. In constructing my own contributions, I’ve found the book so rich and deep that an adequate exposition takes long enough and suggests enough of its own questions to where exposition may be sufficient to get good discussion off the ground, so I think it is fine to simply raise your own questions and criticisms in the comments.

Discussions in the comments should be largely focused on the topics raised by that particular section, though of course the sections are all deeply interwoven. If the discussion branches off into several topics, I suggest either placing a brief heading on your comment or, if the subject warrants further discussion, creating your own post on the matter.

I’m going to title my posts “OPR: Ch.I, The Fundamental Problem, Sec.1, Social Morality” and then “OPR: Ch.I.2, Moral Authority among Free and Equal Persons”. Posts title should err on the side of brevity. Jerry has not made this easy on us, but by using abbreviations for repeated text, I think we can make due.

I think we should post the first section of each week on Monday morning and the second on Wednesday morning in order to give us time to focus in on one particular section. There is so much going on in each section that we will have plenty to talk about.

Please note that if you still need a sample copy, email me at kevinvallier-at-gmail-dot-com.

Ok, with that, we’re off. Here’s the schedule:

OPR Reading Group

Chapter I: The Fundamental Problem

January 17th: Preface and Section 1, Social Morality (Kevin Vallier)
January 19th: Section 2, Moral Authority among Free and Equal Persons (Kevin Vallier)
January 24th: Section 3, Evaluative Diversity and the Problem of Indeterminacy (Jonathan Quong)

Part One: Social Order and Social Morality

Chapter II: The Failure of Instrumentalism

January 26th: Section 4, The Instrumentalist Approach to Social Order (Jonathan Quong)
January 31st: Section 5, Revisionist Theories (Peter Vanderschraaf)
February 2nd: Section 6, Orthodox Instrumentalism (Peter Vanderschraaf)

Chapter III: Social Morality as the Sphere of Rules

February 7th: Section 7, The Evolution of Rule-Following Punishers (Jason Brennan)
February 9th, Section 8, Deontic Reasoning (Jason Brennan)
February 14th, Section 9, The Rationality of Following Rules (Ian Ward)
February 16th, Section 10, Moral Rules as Social Rules (Ian Ward)

Chapter IV: Emotion and Reason in Social Morality

February 21st: Section 11, Moral Demands and Moral Emotions (Keith Hankins)
February 23rd: Section 12, Moral Emotions and Moral Autonomy (Keith Hankins)
February 28th: Section 13, The Reasons One Has (John Thrasher) (Part 2)

Part Two: Real Public Reason

Chapter V: The Justificatory Problem and the Deliberative Model

March 7th: Section 14, On Modeling Public Justification (Andrew Lister) (Part 2) (Part 3)
March 14th: Section 15, Proposals (Micah Schwartzman)
March 16th: Section 16, Evaluating Proposals and the Problem of Indeterminacy (Micah Schwartzman)

Chapter VI: The Rights of the Moderns

March 21st: Section 17, Arguments from Abstraction and the Claims of Agency (Blain Neufeld)
March 28th: Section 18, Jurisdictional Rights (John Thrasher)

Chapter VII: Moral Equilibrium and Moral Freedom

March 30th: Section 19, Coordinating on a Morality (Colin Bird)
April 4th: Section 20, The Evolution of Morality (Thomas Porter)
April 6th: Section 21, The Testing Conception (Thomas Porter)

Chapter VIII: The Moral and Political Orders

April 11th: Section 22, The Authority of the State (Peter Stone)
April 13th: Section 23, The Justification of Coercive Laws (Peter Stone)
April 18th: Section 24, Private Property and the Redistributive State (Christopher Morris)
April 20th: Section 25, Further Functions of the State and Practical Paretianism (Christopher Morris)
April 25th: Concluding Remarks on Moral Freedom and Moral Theory (Kevin Vallier)
April 27th: Appendix A, The Plurality of Morality (Kevin Vallier)

Sen returns to many of the themes of The Idea of Justice in the final chapter. He begins by noting that people respond to injustice with anger and indignation, but that justice requires reasoned scrutiny of these sentiments (Chapter 1). Public reasoning is central to justice, since “there is a clear connection between the objectivity of a judgment and its ability to withstand public scrutiny” (394; c.f., Chapter 5, 15-17). Decisions need to be seen as just not only for instrumental reasons, but because those that cannot be made public are likely unsound. (388-94)Justice involves the comparison of a plurality of impartial reasons which may conflict (Chapter 9). There is a tendency in moral and political thought to search for a single value that encompasses all others (e.g., pleasure), but reason doesn’t support this reduction. Happily, non-commensurability and incompleteness don’t inhibit our ability to reason objectively about justice. Though we may need to accept “an unresolvable diversity of views,” this is usually “a last resort”. (397, footnote) In many cases, we can identity shared partial rankings to guide our decisions even if our personal reasons behind these rankings are different. (394-401; c.f., Chapter 4)

According to Sen, reasoning about justice should not be confined to a single state or community, but rather be global and cosmopolitan. Justice requires “open impartiality” (Chapters 5-9). Non-compatriots’ interests are relevant to justice, as are their perspectives; these may help correct our parochial biases. Our actions at the level of the state affect people outside its boundaries, so we should consider their interests before acting. For example, the US reaction to the global recession has far reaching consequences to the global and hence most local economies. Also, our values may have their basis in ignorance and exposure to people outside of our circle may give use more adequate information for assessing them. Sen cites Adam Smith’s discussion of infanticide here. (404)

Sen refers loosely to “global democracy”. Unlike many cosmopolitans, he doesn’t reject a global state outright, but rather points to its current infeasibility. He connects the rejection of cosmopolitan accounts of justice with Rawls and Nagel’s view that justice primarily concerns institutional arrangements. If global institutions are necessary for justice, this may support justice’s limited scope. Instead, Sen relies on his conception of democracy as public reasoning and the role of governmental bodies (e.g., the United Nations and its different bodies), citizens’ organizations, “many NGOs, and parts of the news media”. (409) Instead of working toward a global state, we should work to strengthen global public reason. (401-9)

Fourth, Sen’s theory of justice has its roots in social choice theory, not on the social contract. (Chapters 2-6, 9) His theory of justice “concentrates, as the discipline of social choice does, on making evaluative comparisons over distinct social realizations.” (410) This leads to a concern with comparative justice and a focus on actual outcomes, rather than “perfect justice” that primarily examines institutions. (410-2) Sen returns to the distinction between niti and nyaya and reiterates the importance of taking into account actual outcomes instead of concentrating on just institutions or principles. (413)

The role of philosophy in justice is to “play a part in bringing more discipline and greater reach to reflections on values and priorities as well as on the denials, subjugations and humiliations from which human beings suffer across the world.” (413)

Questions and thoughts:

1) Since this is the final chapter, I think it’s worth asking what Sen hoped to accomplish in The Idea of Justice. Is The Idea of Justice a culmination of Sen’s work in political philosophy the way Theory of Justice incorporates and refines the papers that led up to it or is it a summary where the reader must consult Sen’s references to journal publications to fully evaluate his considered views?
I’m inclined to think that The Idea of Justice is not a definitive statement of Sen’s views. (Blaine mentioned that chapter 1 is not really aimed at professional philosophers or political theorists; the same could be said of the book.) First, most of the chapters are far too short on detail and discussion of the literature to satisfy a philosophical audience. Second, most of the discussion is non-technical and accessible in its general outlines to a non-philosophical audience (as the mainly favorable reviews in the mainstream press suggest). Third, Sen gives many references to his journal publications, suggesting that they are relevant to evaluating his fully formed position.

2) If I am right here, then it’s worth asking about the value of Sen’s approach. Who ought a theory of justice to address? One possibility is that it ought to speak to political philosophers and theorists immersed in the most recent scholarly discussions. My impression is that most of the people who have participated in this reading group find Sen’s book unsatisfactory on this account.

Another possibility is that a theory of justice ought to be accessible to a wide range of academics, including economists, sociologists, law, geography, education etc. I suspect that it may be better received by people who aren’t immersed in philosophy, particularly economists. One reason is that if we follow Sen, we can largely bypass the philosophical literature on justice, a plus for people in other disciplines who work on the topic. A third is that the theory should seem relevant to academics in general, politicians, and the reflective public.

Obviously, different work can engage each of these three audiences, but I think we need to ask this question for two reasons. First, how do we fairly evaluate a work? For example, should we assess Sen’s book based on how well it engages recent philosophical literature on justice? Second, the choice of audience is central to political philosophy’s ends. Presumably, political philosophy should have some indirect influence on policy. If Sen had tried to satisfy his philosophical critics, his book would need to be at least twice as long and would have a much smaller audience.

3) Social choice perspective plays a central role in Sen’s theory. In fact, it may be fair to claim that his theory of justice treats political philosophy as a sophisticated branch of normative economics. I believe a fair assessment of Sen’s book would require delving into his work on rationality and social choice. Social choice theory grounds his pluralism and informs his basic “comparative” framework. Sen starts with individual preferences, but subjects them to standards of rationality and public reason and asks how they can be aggregated in a morally salient way. The result is that quite a bit of substantial political theorizing is outside of the hands of political philosophers and left to public reasoning (where political philosophers can weigh in but have no special authority).

Political philosophers have reason to worry on two fronts: economics and the general public have a greater role in determining the just society. Should they accept this?

In chapter 17, Sen outlines a theory of human rights. He acknowledges that many human rights activists have little patience for philosophical discussions on the nature (and indeed existence) of human rights. He also discusses Jeremy Bentham’s quip that the natural rights are “nonsense on stilts”. Sen insists that if “the idea of human rights … is to command reasoned and sustained loyalty” (356), we must address the skeptics and cynics.

Sen analyzes human rights in terms of their content and their justification (their “viability”) (358). With regard to their content, human rights are moral rights that protect important freedoms and entail social obligations that people promote these freedoms. First, Sen stresses that human rights are moral rights – “really strong ethical pronouncements as to what should be done”. (357) They are not legal rights, though they are often enshrined in legal documents and institutions. (363) Law plays a central role in guaranteeing human rights, but other activities such as education, public monitoring, debate, and protest are also crucial. Indeed, there are cases under which giving human rights legal status may be counterproductive. Fining or jailing men who deny their wives an effective voice in family decisions is probably not the best way to promote women’s equality. (365)

Second, the purpose of human rights is to protect important freedoms. (376-9) As we have seen, Sen’s analysis of freedom includes an “opportunity aspect” and a “process aspect”. The capabilities approach captures the opportunity aspect (capabilities are real opportunities to achieve valuable functionings). (371) But human rights go beyond the capabilities approach in protecting the process according to which achieve these functionings. Two people with access to an identical set of functionings may be in a quite different situation with regard to human rights. For example, the rule of law may guarantee person A’s access valuable functionings, whereas person B may rely on the whim of a benevolent dictator. Leaving aside the fact that dictators generally do a poor job of guaranteeing human rights, many of us also care about how rights are guaranteed.

Sen objects to interest-based accounts of human rights because he thinks they interfere with our intuitions about the importance of freedom. His objection rests on the distinction between people’s “real” interests and the interests they perceive themselves as having. For example, we generally want to protect the human right to free political association, even if people choose to associate with political parties that do not promote their real interests. Sen admits that some interpretations of “interest” incorporate freedom, so some freedom-based and interest-based accounts of human rights converge.

Third, human rights do not protect all freedoms. Rather, they must meet “threshold conditions” of “sufficient social importance to be included as a part of the human rights of that person and correspondingly to generate obligations for others to see how they can help the person to realize those freedoms…” (367) Impartial discussion is needed to determine which rights meet this threshold.

Fourth, human rights entail social obligations. (360) Human rights impose universal ethical reasons for people to prevent their violation, but these reasons do not automatically entail specific actions. Obligations may be perfect, but they are often imperfect and diffuse. We need to ask about the agents’ other obligations, their ability to effectively prevent the violation of the human right, their agent-relative prerogatives, etc.

How does Sen justify a list of human rights and identify the obligations that they entail? On his account, human rights are justified like other ethical claims. To assert a human right is to presume that these claims will meet the standard of “open impartiality” discussed in Chapter 6. Human rights claims that “survive open and informed scrutiny” (385) and “unobstructed discussion” (386) deserve their status – at least until contrary arguments surface. Even if there is widespread agreement about which rights count as human rights, people are bound to disagree about their comparative weight, how they mesh with other ethical considerations, and the structure of the obligations they impose.

Sen is particularly concerned about the justification of second-generation economic and social rights such as the right to subsistence, medical care, and education. (379-85) He discusses two philosophical criticisms of human rights, the “institutionalization critique” and the “feasibility critique”. Onora O’Neill has argued that social, economic, and cultural rights must be institutionalized in a way that clearly identifies obligation-bearers. Human rights without obligation-bearers are not human rights at all. In response, Sen argues that first-generation rights also impose imperfect obligations. For example, citizens have obligations to notify the police when witnessing a crime and the international community has an obligation to act to prevent genocide. Furthermore, O’Neill’s condition that human rights economic, social, and cultural rights must be institutionalized undermines their ability to motivate institutional change.

Similarly, Maurice Cranston argues in his “feasibility” critique that economic and social rights require considerable government action for their realization, something that often cannot be achieved with some countries’ infrastructure and resources. Sen responds by noting that Cranston is mistaken in thinking that first-generation rights simply require that governments and people “leave a man alone.” (384) Maintaining rule of law and social stability is also beyond the means of quite a few governments, but few hold that this discredits their moral force. The proper response to the inability to meet the requirements imposed by a human right is social action.

Like most of the preceding chapters, there are many issues that could be raised, including whether Sen adequately addresses interest-based human rights accounts, fairly rebuts O’Neill and Cranston (and other critics), etc. I’ll conclude with two general questions.

1) Will Sen’s account of human rights satisfy either skeptics or activists? Skeptics are unlikely to be moved by the appeal to reasoned scrutiny and discussion and will still decry the impotence of human rights in the face of realpolitik. Moreover, Sen’s broad treatment of human rights is deflationary, arguably reducing them to important moral rights that have special rhetorical force. His metaphysical modesty and non-committal approach to the actual list of rights may play into the skeptics’ hands who will deny that there is anything particularly special about human rights that lack the sanction of positive law. Sen is a long way from the natural law tradition he discusses in the first part of the chapter. He holds not only that there is a trade-off between human rights – sometimes human rights conflict – but that sometimes other ethical prerogatives or obligations can take precedent over obligations stemming from them.

Similarly, activists will ask how his account supplements their work. We can return to the Preface and ask how the Parisians storming the Bastille, Gandhi or Martin Luther King would view Sen’s account of human rights. Does it help with “the identification of redressable injustice”? (vii) Does it “clarify how we can proceed to address questions of enhancing justice and removing injustice”? (ix) Sen’s account of human rights is in many ways refined common sense. Activists may complain that this doesn’t add much moral clarification or force to their causes.

2) There is a tension between Sen’s pluralism and “assertive incompleteness” and his account of human rights. Recall that Sen argues that impartial discussion may not lead to agreement about just social arrangements, including agreement on the list of human rights and their content. Human rights are moral claims of sufficient social importance that their guarantee entails social duties. Presumably, they should be subject to “plural grounding”. (2) If a human right is sufficiently disputed by reasonable people from a perspective of “open impartiality”, then it should be (tentatively) struck from the pantheon.

My worry is that Sen’s theory of justice may commit him to minimalism about human rights. For example, in the example of the children deciding who receives the flute, Sen seems to consider a libertarian distribution of property reasonable. This would cast doubt on the status of the second-generation rights he defends.

Let me first start by apologizing for the late delivery of this comment, which unfortunately messed up Blain Neufeld’s carefully drafted schedule. Apologies to Blain and readers for this.

In Chapter 14, Sen elaborates on the relationship between equality and liberty (or freedom) in relation to the capability approach. A number of issues covered in this chapter have become classics in the literature, and will likely be familiar to readers. But Sen also spends some time discussing the distinction between his approach and that of Philip Pettit – an issue that raises some interesting questions I would like to reflect on in this comment. But let me first briefly review the main points covered in this chapter of The Idea of Justice.

Sen begins the discussion in this chapter by rehearsing the idea (famously expressed in his Tanner Lectures) that all plausible theories of justice have some place for equality, reflecting the fundamental insight that, at some basic level, people must be seen (and treated) as equals. The real question to be answered, Sen concludes, is that of the precise metric of equality underlying competing theories. Sen’s own answer to the “equality of what” debate, as readers know, is to advance capability as the appropriate metric of advantage. However, Sen also insists that an egalitarian perspective informed by the capability approach is not committed to strict equality of capability. He gives us several reasons to resist this strong form of capability egalitarianism, affirming the “multiple dimensions in which equality matters” (p. 297). One important point is that capability only affects what Sen calls the opportunity aspect of freedom and is incapable (pun unintended) to fully capture its process aspect. For Sen capability-based considerations are a crucial but not comprehensive part of a general theory of justice.

In the remainder of the chapter Sen shifts his attention to liberty or freedom, in which he wants to bring home the point that freedom too should be considered a complex and multi-dimensional (or plural) value. Sen suggests personal liberty should be given a good deal of priority, because “it touches our lives at a very basic level” (p. 299), but equally cautions against the extreme view of giving freedom absolute priority (such that it would trump any other concern, no matter how important or urgent). But now the question arises how we should conceive of this freedom that takes priority among the long list of factors that affect how well our lives go. Here Sen makes three distinct points, each of which are controversial and allow for considerable disagreement:

1. When freedom is viewed as “effective preference” we should appreciate the importance of the distinction between direct control, indirect control and luck, for the simple reason that there are many ways in which I may get what I want without having a direct say in how I get it. For Sen the mere fact that I have a preference satisfied implies a type of freedom that matters to how well my life is going (“a freedom of some importance”, p. 304).

2. Relatedly, the plural conception of freedom admits of several ways in which freedom is threatened or impeded: through a lack of capability, through genuine interventions, or through a lack of independence (making one’s preference satisfaction “favor-dependent” in one formulation). Sen spends a whole section arguing about the precise relationship between Pettit’s republicanism and his own capability approach, a point to which I return below.

3. Finally, the proper understanding of freedom (individual or collective) must take account of the outcomes of actions in addition to whether they are properly deemed to be free. This insight relates to Sen’s “impossibility of the Paretian liberal”, a theorem that has spawned a cottage industry of technical literature – a topic I’m happy to leave to more qualified readers.

In the remainder of my comment I want to say a few words on what I personally believe is the more interesting contribution of this chapter, the discussion between Sen and Pettit.

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Chapter 11, the first chapter in a part of the book entitled « The Materials of Justice”, presents us with Sen’s well-known theory of capabilities. The main focus of the chapter is to emphasize that the capability approach is essentially a theory about human freedom, or more precisely, a theory about how freedom should be factored into the assessment of advantage and disadvantage. As against welfarist construals, Sen points out that we care not just that we achieve what we want, but also how we achieve what we want. Whether what we achieve results from our own agency, and whether we were able to exercise our agency on a range of valuable “functionings”, matters to an assessment of how well we do just as much, if not more, as does the result of our activity. We should be interested in “comprehensive outcomes”, not just “culmination outcomes”.

Two aspects of the capability approach are emphasized by Sen. First, the theory has an “informational focus”. As opposed to the approach developed by Martha Nussbaum, Sen’s just tells us what we should be concerned with in the measurement of advantage and disadvantage. He does not tell us what we should do with that information once we achieve it. Nor does he fill in the detail about what, precisely, we have reason to care about. The theory is thus neutral, at least on its face, as between different approaches to distributive justice – egalitarian, sufficientarian, prioritarian, and so on, as it is between various ways of filling out the detail of what we have reason to care about.

Second, the theory is pluralistic. There are a range of things that we have reason to value, that cannot be reduced to one metric. Bundles of desirable functionings will reflect this.

Sen deflects two worries about the capability approach. The first comes from welfarists like Arneson and Cohen who argue, on Sen’s way of putting their arguments, that we should be concerned with what people actually achieve, rather than with what they can achieve. Sen’s response to this is that the capability approach includes the welfarist approach because the functionings realized by an individual are part of the set of functionings that he could achieve. Making this broader set the index of his advantage provides us with better information about advantage because it includes freedom to achieve a range of bundles as an ingredient.

The other worry has to do with commensurability. How can we evaluate options given the irreducible pluralism of reasons to value that Sen affirms? Sen responds by stating, in line with much of the recent literature on evaluation, that incommensurability makes evaluation harder, but not impossible.

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