Moral fault and culpability

Our exalted Founding Fathers owned slaves. And of course they were founding “fathers” because they didn’t recognize the moral or political equality of women. Our ancestors perpetrated genocides, enslavement, torture, war, rape, forced conversions, mass sterilization, etc. You know the drill. The perennial question is What kind of judgment can we pass on our forebears? How could they have been so evil? Especially since we are keenly aware that our own grandchildren may look back on us with cold condemnation. Debates around this question rarely get anywhere. We want to avoid the cultural relativism that would exonerate our ancestors completely but also remain able to criticize what they got wrong.

In Epistemic Injustice: Power and the Ethics of Knowing, Miranda Fricker offers a novel way out of this jam. She distinguishes between culpable fault and non-culpable fault. I’ll let her explain it below. A bit of background for her example: Fricker refers to the Talented Mr Ripley, a play in which Marge has critical information that could prove Ripley murdered Mr Greenleaf’s son (and Marge’s philandering lover), but Greenleaf allows himself to be drawn into Ripley’s portrayal of Marge as merely a “hysterical woman”.

In the case of Herbert Greenleaf, we see this historical contingency played out in respect of the absence of a critical awareness of gender prejudice in the society in which his ethical and epistemic second nature were formed. While the Herbert Greenleafs of this world were always at fault in failing to exhibit the virtue, I suggest they were not culpably at fault until the requisite critical consciousness of gender became available to them. As we might put it, they were not culpably at fault until they were in a position to know better. There is no precise answer to the question at what point a Herbert Greenleaf comes to be in a position where he should know better than to neglect the possibility that Marge is right. And this question is surely best construed as a matter of degree, not least because the requisite collective gender consciousness is something that is likely to dawn only gradually. But no doubt a figure such as Herbert Greenleaf would be in that position long before he actually lived up to it by taking on board the gender-critical insights made newly available to him. Thus there will tend to be some period of historical transition in which a Herbert Greenleaf, well-intentioned as he may remain, moves from non-culpable fault to culpable fault. He lacks the virtue of testimonial justice with regard to gender prejudice throughout, but the relevant advance in collective consciousness is needed to render the shortcoming in his epistemic conduct blameworthy. Under the historical circumstances, then, my suggestion is that Greenleaf is not blameworthy for the testimonial injustice he inflicts on Marge.

There are some important points here. Fricker abjures relativism but doesn’t thereby advocate anything like a simplistic moral realism. Phrases like “historical contingency,” “critical consciousness,” and “collective gender consciousness” all point to the idea that the individual requires some kind of social resources or tools in order to understand and practice morality, however objective that morality might be. For example, it would be unreasonable to expect a 19th century man to understand or practice gender equality given his historical context. Mary Wollstonecraft had advanced her arguments in the end of the 18th century that women are educated in a way that undermines their rationality and dignity, but those arguments weren’t yet widely accepted by thought leaders. When John Stuart Mill wrote the Subjection of Women in the middle of the 19th century, he was writing in direct opposition to essentially the entire Western philosophical canon. There were of course radicals who advocated gender equality, but they were, well, radicals. Gender equality is not a simple idea to construct on one’s own when gender norms were so deeply entrenched and there wasn’t even the concept of “gender norm” with which to probe the issue.

Or for an example with a different political valence—this isn’t really a post about feminism—take free trade. It’s intuitive that we want to protect our country from shady foreigners. Buy American. But of course lobbying for protection against trade with foreigners wrongs both native customers and foreign producers, especially poor foreigners whose economic prospects are significantly diminished by being forcibly cut off from lucrative markets. Understanding the moral case for free trade requires concepts from both cosmopolitan ethics (or just universal equality) and the discipline of economics that explains technical concepts like division of labor and comparative advantage. In contexts where these resources aren’t readily available, free trade is going to be a hard sell.

Fricker further distinguishes between routine and exceptional “discursive moves in moral discourse.” Mill’s argument that there should be equality between women and men was an exceptional move. His contemporaries can hardly be morally condemned for failing to grasp this exceptional move. In contrast, Mill’s contemporaries could be condemned for, say, murder or other violence. The moral understanding that violence (absent some overriding justification) is wrong was and is routine.

However, our ancestors aren’t entirely off the hook for things like slavery, Jim Crow, unjust war, etc. And we’re not off the hook with our grandchildren either. Mill’s contemporaries who participated in the subordination of women were wrong after all. And Fricker allows we may justifiably feel some resentment toward those sexists of the past who just didn’t get it. As we move forward in time and the basic arguments of feminism have gone mainstream, that resentment of the masses transforms into condemnation of misogynist holdouts. To the skeptics of feminism in the audience, I’m not being controversial here, and you’re free to insert your own moral example to bring home the point. I’m thinking of misogynists who believe women shouldn’t vote and shouldn’t be given the same education as men. These are exceptional holdouts who mirror the exceptional reformers from before the moral paradigm shift.

Hopefully it’s clear that this is a continuous process. There’s no magic moment when the heavenly trumpets sound and a person goes from merely wrong to condemned. In the historical moment most of us are just doing the best we can in the collective—and internal, for that matter—moral discourse. These moral paradigms can shift rapidly and catch non-culpably wrong people up in the maelstrom. I’m thinking about the folks who participated in the common exclusion of GLBT people in, say, the 80s and 90s and failed to keep up with the rapidly shifting moral understanding of the last couple decades.

Now let’s get to the burning question. With Fricker’s distinction, can we both respect George Washington and condemn Adolf Hitler? It seems that we can. George Washington owned slaves. But so did most people in his landowning class in his time. He was wrong to do so, but he wasn’t exceptionally wrong. His failure to respect the dignity of these human beings by freeing them was in line with the routine moral understanding that slavery was a part of the natural order since biblical times. Indeed, if the stories are true (I haven’t done the research here because it’s not critical to my point), Washington treated his slaves as humanely as was consistent with the existence of slavery, and he provided for their manumission in his will, suggesting he was at least thinking critically about the justice of the peculiar institution. Washington was wrong about slavery, but the man was not evil.

What about Hitler? It seems as though the moral understandings available to Hitler at the time were sufficient to prevent not only genocide of Jews but also aggressive war. The understanding since the Treaty of Westphalia, since the bloodshed of the Napoleonic Wars, and since the horrors of the Great War all pointed to the clear moral evil of aggressive war. Jews meanwhile were citizens who had been participating peacefully and productively in civic life amidst their fellow citizens for centuries. The principles of religious freedom and tolerance were widely available since Europe’s centuries of religious warfare. Hitler and his Nazis were straightforwardly evil.

Radical feminism: hermeneutically sealed

Radical feminism—and this is a technical term, to be contrasted with liberal feminism, socialist feminism, etc—is often dismissed for some positions that seem facially outrageous, even to other feminists. Heterosexual sex is inherently a manifestation of violent dominance of men over women. “Pornography reveals that male pleasure is inextricably tied to victimizing, hurting, exploiting. Rape is the paradigm of sexuality.” ‘Innocent until proven guilty’ in rape cases just protects male rapists by privileging their point of view over that of victims. Freedom of speech and the right to privacy likewise act to shield men in their oppression and exploitation of women. Women cannot truly consent to sex work (they can only be “prostituted”). Women who dispute the claims of radical feminism suffer from “false consciousness”. You get the idea.

radfem1I’m a liberal feminist, and so ultimately I conclude radical feminists overextend themselves, bite off more than it’s a good idea to chew. But in reading Catharine MacKinnon’s Toward a Feminist Theory of the State, I was surprised at the overlap of MacKinnon’s radical feminism with some of the liberal feminism I’ve read. The overlap isn’t unity, for sure, but many of MacKinnon’s criticisms of liberalism have been pretty successfully ingested by and incorporated into the best exponents of liberal feminism, and many of the seemingly outrageous bits are less so when viewed within the radical feminist paradigm. I want to give radical feminism à la MacKinnon the best representation I can before I impugn it. I’ll speak with my own voice again in the final section.

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Objectification, Dehumanization, Pornography

Objectification of women is a recurring theme of feminist discourse. The basic idea is that women are objectified when they are viewed or treated primarily as objects rather than as human beings, whether this is through pornography, modern advertising, or direct interpersonal interactions (cat-calling, ogling, groping, etc). Objectification is a form of dehumanization that can facilitate direct harms like sexual assault as well as more indirect harms like mental health problems, eating disorders, body image issues, etc.

But objectification is not at all a simple concept. Martha Nussbaum has argued that not all objects are treated the same, so it’s worth examining which particular ways we treat objects are inappropriate for treating humans. In her essay Objectification (pdf here, also appearing in her book, Sex and Social Justice), she suggests we treat objects in at least seven different ways, conceptually distinct but not mutually exclusive; indeed they’re often overlapping and mutually reinforcing.

  1. Instrumentality: The objectifier treats the object as a tool of his or her purposes.
  2. Denial of autonomy: The objectifier treats the object as lacking in autonomy and self-determination.
  3. Inertness: The objectifier treats the object as lacking in agency, and perhaps also in activity.
  4. Fungibility: The objectifier treats the object as interchangeable (a) with other objects of the same type, and/or (b) with objects of other types.
  5. Violability: The objectifier treats the object as lacking in boundary-integrity, as something that it is permissible to break up, smash, break into.
  6. Ownership: The objectifier treats the object as something that is owned by another, can be bought or sold, etc.
  7. Denial of subjectivity: The objectifier treats the object as something whose experience and feelings (if any) need not be taken into account.

Some of these are a little confusing without examples. I couldn’t make sense of “agency” but by “inertness” Nussbaum seems to mean something like “involving processes”; she gives the example of a word processor as something that is not inert, whereas a rock is inert. We use many objects instrumentally, as tools for our purposes, but we often wouldn’t use an ancient tree in a forest as a tool; we may treat an animal as a tool, but rarely merely as a tool, perhaps because animals have subjectivity. Ink pens are fungible and instrumental, but Michelangelo sculptures are not; both lack autonomy and subjectivity and can be owned.

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Migration: a human capability

This essay was originally published at Open Borders: The Case. I’m cross-posting, slightly modified it here in observance of Open Borders Day.

One of the core arguments for free movement of people is the economic logic of the free movement of labor. But of course people are more than just labor, and migrants make the journey for a variety of reasons. If it isn’t for economic gain (or welfare benefits maximization, in the cynic’s version of the narrow economic motive), then the migrant must be fleeing oppression, if the typical migration discussants are to be believed. The role open borders could play in offering sanctuary for the oppressed is important, of course. But this too, is not the full story.

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The capacities approach of Will Wilkinson

In a 2007 blog post (Web Archived here), Will Wilkinson explored the limits of the crisp, clean, Boolean distinction between negative and positive liberty, using as his foil the Objectivist philosopher David Kelley’s treatment of the subject. The post itself forcefully argues that there is no reliable and useful way to separate positive (freedom to x) from negative liberty (freedom from interference). Many of the things we value in life depend critically on the beliefs and actions of other individuals, but have nothing to do with interference as commonly understood. That’s well and good – read the whole thing – but here I’d like to recast Wilkinson’s analysis of liberty as the liberty of the capabilities approach.

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Disequilibrium ethics

As part of a self-led course on liberal feminist philosophy, I accidentally started reading Situating the Self: Gender, Community, and Postmodernism in Contemporary Ethics, by Seyla Benhabib. I say accidentally because feminism isn’t really the focus of the book. I have found myself instead knee-deep in “discourse ethics” – the book’s main subject.

It’s easiest to describe discourse ethics in contrast to social contract ethics, where we envision some ideal scenario in which ideal individuals come to some kind of ideal agreement about what constitutes justice. (Social contract ethics typically focuses on justice rather than the broader topic of what constitutes the good life). To the social contract theorist, justice is whatever we could agree to if we were perfectly rational and perfectly objective. In a passage that would have been incredibly helpful had it appeared on page 2 instead of page 169, Benhabib trots out the differences between this approach and discourse ethics.

Both the Rawlsian “original position” and the Habermasian model of “discourse ethics” are idealizations intended to make vivid to us the ideal of impartiality or of what it means to assume the moral standpoint. Their differences center around the following points. According to discourse ethics, the moral standpoint is not to be construed primarily as a hypothetical thought process, carried out singly by the moral agent or by the moral philosopher, but rather as an actual dialogue situation in which moral agents communicate with one another. Second, in the discourse model no epistemic restrictions are placed upon moral reasoning and moral disputation, for the more knowledge is available to moral agents about each other, their history, the particulars of their society, its structure and future, the more rational will be the outcome of their deliberations. Practical rationality involves epistemic rationality as well, and more knowledge rather than less contributes to a more informed and rational judgment. To judge rationally is not to judge as if one did not know what one could know (the effect of hanging the “veil of ignorance”), but to judge in light of all available and relevant information. Third, if there are no knowledge restrictions to be placed upon such an argumentative situation, then it also follows that there is no privileged subject matter of moral disputation. In the discourse model, moral agents are not only limited to reasoning about primary goods which they are assumed to want whatever else they want. Instead, both the goods they desire and their desires themselves can become subjects of moral disputation. Finally, in such moral discourses agents can also change levels of reflexivity, that is they can introduce metaconsiderations about the very conditions and constraints under which such dialogue takes place and they can evaluate their fairness. There is no closure of reflexivity in this model as there is in the Rawlsian one. (pp 169)

Emphases in original. There are three ideas here that I’d like to discuss in turn: (1) actual versus hypothetical dialogue; (2) universal particularity versus blind universalism; and (3) the vague rather than strict boundary between the right and the good.

Actual versus Hypothetical Dialogue

The whole point of thinking about justice hypothetically in terms of idealized agents coming together to hammer out the principles of justice once and for all is that this way you can actually reach an agreement and come to some conclusions. Of course, in real life we can never get any group of appreciable size and diversity to agree on anything at all. The consensus achieved by idealized agents is illusory because (1) we ultimately have to return to the world of flesh and blood to test out the ideas arrived at behind the veil; and (2) meaningful differences between the contractors have been idealized away to such an extent that the contractors are identical, so it’s no consensus at all, except that of the philosopher with themself. I’ll save (2) for the next section.

As to (1), the veil of ignorance – whereby we ponder what folks might agree to about how society is organized if they didn’t know what their own place in that society would be – is a useful thought experiment. It challenges us to think objectively, and it can yield valuable insights. But upon lifting the veil, the conclusions must still be justified to real people who can argue back. This becomes evident when you see the real world criticism by other philosophers when a theory of justice derived from ideal theory is published. This might seem like a trivial point, but I think it matters that at the end of the day, there’s no escaping engaging with real folks who keep raising good objections regardless how objective we think we’re being.

Benhabib’s alternative approach of discourse ethics moves the emphasis from the agreement to the process of getting to that agreement and explicitly eschews the requirement to actually reach universal agreement.

We must interpret consent not as an end-goal but as a process for the cooperative generation of truth or validity. The core intuition behind modern universalizability procedures is not that everybody could or would agree to the same set of principles, but that these principles have been adopted as a result of a procedure, whether of moral reasoning or of public debate, which we are ready to deem “reasonable and fair.” (pp 37)

Disagreement and therefore politics are brute facts of our social nature. The unhappy fact is that sometimes we will of necessity – when the stakes are high enough to warrant it – have to coerce cooperation in order to reap the rewards of social coordination. We can’t avoid this, but we can try to make the social and political decision procedures as just and as robust as possible.

Universal particularity versus blind universalism

As I said above, consensus behind the veil is really the consensus of the contract theorist with themself. This criticism has been lobbed at Rawls from multiple angles, including from feminists and non-contractarian liberals. If we abstract away all our socially defining features and our substantive commitments, we erase the particular, vivid experience of, for example, what it’s like to be a member of a marginalized ethnicity or religion, or a woman in a society where men have been calling the shots for centuries. Individual experience, in all its granular particulars, is a requisite epistemic resource for any meaningful discourse on justice.

The conditions for a just and robust discourse are these:

(1) that we recognize the right of all beings capable of speech and action to be participants in the moral conversation – I will call this the principle of universal moral respect; (2) these conditions further stipulate that within such conversations each has the same symmetrical rights to various speech acts, to initiate new topics, to ask for reflection about the presuppositions of the conversation, etc. Let me call this the principle of egalitarian reciprocity. (pp 29)

Emphases in original. Everyone can speak, raise issues, and contest common assumptions and narratives. And each person owes it to others to listen with charity.

white-men-behind-a-veil
Some white men conferring behind a veil

The right and the good are distinct, but not cleanly separable

Liberal neutrality is a critical feature of a peaceful civilization, as it prohibits those in power from enforcing their visions of the good life onto their dissenting fellows, thus eliminating a source of irreconcilable conflict. But liberal neutrality shouldn’t be construed to shield conceptions of the good from critical inquiry. We derive the same epistemic advantages from opening our conceptions of the good to outside critique as we do from opening our theories of justice to critique.

If in discourses the agenda of the conversation is radically open, if participants can bring any and all matters under critical scrutiny and questioning, then there is no way to predefine the nature of the issues discussed as being public ones of justice versus private ones of the good life. Distinctions such as between justice and the good life, norms and values, interests and needs are “subsequent” and not prior to the process of discursive will formation. As long as these distinctions are renegotiated, reinterpreted and rearticulated as a result of a radically open and procedurally fair discourse, they can be drawn in any of a number of ways. (pp 110)

Justice and theories of the good shouldn’t be strictly separated because this is likely to implicitly privilege status quo power relations to the detriment of the marginalized. Without critical challenge from diverse perspectives, these relations can easily be understood as natural or inevitable, rather than socially constructed and changeable. An example of this is the common understanding throughout pre-feminist history that domestic family matters are private and not open to public scrutiny, and further that a woman’s natural role is within the domestic sphere while the man’s natural role to engage in civic life.

As an aside, I suspect one can fruitfully compare this ethical approach to Hayek’s defense of freedom as a discovery process: the trusting of “the independent and competitive efforts of many to induce the emergence of what we shall want when we see it.” (Constitution of Liberty, pp 29) For both Hayek and Benhabib, the core problems of living together are the epistemic ones of effectively harnessing dispersed knowledge.

Reflective equilibrium and discursive disequilibrium

Reflective equilibrium is the process by which we achieve harmony between our moral intuitions and our rational theories of ethics. We reason about ethics in order to construct some kind of machinery we can trust to guide us through novel moral terrain. We calibrate our theories against our intuitions in well-understood cases, and we go back to the drawing board if our theories throw up catastrophic moral horrors for these intuitive cases. And we go back and forth, sometimes becoming so confident with our theoretical machinery that we accept its verdict in central cases over our intuitions.

Ethical discourse extends this procedure beyond the individual to the moral community (construed as the whole of humanity in some cases). We must strive not only reach agreement within ourselves, but with our fellows. But moral pluralism is a brute political fact, and the socio-moral landscape is continually evolving as cultural, political and market arrangements, technology, and scientific understanding all change with the times. New critiques and new ways of relating to one another are always emerging. We’re thus always in a state of disequilibrium, seeking consensus where none is actually possible. On this view, moral understanding is a continual process and not something that can ever be figured out once and for all.

Rape culture for Joe Sixpack

Ryan Long basically agrees with the content of my definition of rape culture:

What Paul has managed to do, however, is provide a list of serious grievances that any sufficiently introspective person will find non-contentious. The content of Paul’s list is basically indisputable, as his many citations ably demonstrate. I believe his list functions as an excellent starting point for identifying problematic aspects of cultural behavior and attempting to correct them. To that end, I feel his invocation of the term “rape culture” works against his objective – an objective with which I most assuredly agree.

With the many strenuous disagreements we’ve had, I’m pretty satisfied with this response. But he believes I’m ultimately unpersuasive on the topic, specifically with respect to the very people who need to hear it the most. Read the whole thing, but I fail to persuade for three basic reasons. “Rape culture” is an off-putting term that is inevitably interpreted as accusatory. The phrase “rape culture” is hyperbolic and – if used to describe developed nations where life on the whole is pretty good and there’s no rape epidemic – can lead to desensitizing of the word “rape”. And thirdly, the name “rape culture” provides no added benefit to just telling people their behavior needs to change.

I won’t dispute that I am unpersuasive. It’s certainly not the first time I have been told my writing couldn’t so much as persuade even someone under hypnosis. I’d certainly never claim to be a brilliant rhetorician who can convince the masses of anything. I won’t even claim to always abide by that trusted rule of good writing: know your audience. But in this case I actually did know my audience. It just wasn’t Joe Sixpack. I was writing for two kinds of people. I wanted to provide a reference that my fellow social justice types could potentially use in their own discourses. And I wanted to reach the educated, well-meaning person who is skeptical of social justice movements for whatever reason. The reaction from this latter crowd that I was hoping for was something like “Oh! That’s what the social justice warriors mean by rape culture! I guess that’s not so unreasonable.”

While I like to think our readership here at Sweet Talk is growing, I don’t think we’re quite targeted to either Joe Sixpack or Betty Bluecollar. It’s not that Joe and Betty aren’t worth engaging with. They totally are! But how would I go about even getting them to read Sweet Talk? I know a few of these folks. They’re decent people. Politics doesn’t come up often, but when it does I don’t shy away from revealing my liberal values. But I also don’t come on too heavy with rhetoric. I try to make my case without jargon, but also without talking down to them. I probably rarely succeed but maybe I get them to think from a different angle sometimes. In any case, I’ve never uttered the phrase “rape culture” in one of these conversations, even when that’s what the subject was really about. (I think the last instance was when all of those nude photos of celebrities were released, and I was arguing against both blaming the victims and viewing the photos. I relied on “common sense” morality).

But granted, I am frankly at my rhetorical weakest when discussing social justice morality with Joe and Betty. We all have our strengths and weaknesses. Here is a challenge to Ryan, and to other social justice skeptics who nevertheless agreed with the basic content of my outline of rape culture. If you agree with me, and you believe the issues of sexual assault itself as well as the attitudes and social responses surrounding sexual assault (this is why it’s called a culture, I think) are important, then talk about them. Translate the ideas for Joe Sixpack and Betty Bluecollar, not in long form essays necessarily, but in conversation. If these issues really are important, then it’s worth the effort to bridge the distance between out-of-touch, jargon-tangled social justice warriors like myself and hardworking, down-to-earth folks like Joe and Betty.

Rape culture, a new definition for a contentious idea

Rape culture is a term that can be bandied about rather irresponsibly, both by people who take the term seriously and those who dismiss it. Rape culture does not refer to a culture that explicitly endorses rape (though such a society would certainly qualify). Elizabeth Nolan Brown is characteristically clarifying on the topic:

Much of the skepticism surrounding “rape culture”—and from here I’m moving beyond Soave or McElroy’s critiques to criticism more broadly—takes the term to imply a) radical Islam-levels of female oppression, b) coordinated male conspiracy, or c) a consensus that all elements of rape culture contribute equally to rape rates.

But when feminists decry rape culture in the U.S., they’re not suggesting life for American women is literally a constant struggle to avoid being raped. No one’s saying we face the same level of sexual violence as women in, say, Syria right now. That would be absurd. Which is why I find the “South Africa—now there’s a rape culture, ladies!” argument to be oversimplified and unproductive.

But neither does it mean your common or garden variety objectification of or discrimination against women. I want to propose a definition that is meaningful and workable. I define rape culture as a culture in which

  1. the testimony of women about sexual assault or sexual harassment or misconduct is commonly and instinctively dismissed or qualified (e.g., “surely there was some misunderstanding”);
  2. the behavior of women is circumscribed by constant reminders of the real and imagined threat of rape (don’t go to that party alone; don’t wear that dress; don’t drink; don’t invite him in; etc);
  3. allegations against a man for sexual assault are often turned into a trial of a woman for her character and sexual history (“but she had consented to have sex with him previously” or “she’s been around the block a few times”), implicitly setting up a comparison with a “perfect victim“, as well as her efforts to minimize the risk of assault (see (2));
  4. the effects on the lives of alleged rapists (“he had such a bright future!”) are emphasized in reporting and discussion disproportionately compared to what is seen for other crimes;
  5. rape – when it is believed actually to have occurred – is infused with overwhelming and life-changing power, imposing on the victim additional psychological burdens of playing their role as victim convincingly to fit the socially expected narrative script (in fact, every individual has a unique history and psychology, and can reasonably be expected to have different reactions to sexual assaults, each of which is likewise unique);
  6. rape is not taken seriously in political ways (e.g., leaving thousands of rape kits untested on the shelf);
  7. rape is condoned as an appropriate and justifiable punishment for criminal wrongdoing (as when a convicted criminal is seen to “deserve whatever happens to them in prison”) and indeed this is even an uncontroversial source of humor;
  8. rape is – if not condoned outright – viewed as more of a misdemeanor when the victim is a sexual deviant of some kind (e.g., rape of a sex worker is cheekily framed as “theft of services” rather than a violation of bodily autonomy and consent, and transgender individuals are raped at disproportionately high rates due to their sexualization by society);
  9. rape is heavily gendered, such that the masculinity of male rape victims is questioned, regardless of the gender of the rapist;
  10. and finally, the broad social pattern described above manifests not primarily through conscious intent to create a sexual hierarchy of violent domination, but through tacit acceptance and subtle perpetuation of social norms.

Now, because I embrace tension and ambiguity, I want to acknowledge that a rape culture narrative can be abused. I believe rape culture as defined above exists and is a serious problem. But I also believe that a rape culture is compatible with hamfisted and unwise reactions and solutions, however well-meaning.

Rape culture does not mean every accusation of rape is true or reasonable. Indeed, some accusations are downright absurd and they should not be taken seriously out of paranoia about running afoul of Title IX, “political correctness”, or anything else. Bad sex is not the same as rape. And of course, nothing about the reality of rape culture justifies journalistic fabrication or other kinds of dishonesty.

Acknowledgments: Some folks in the Not That Kind of Feminist Facebook community were extremely helpful in both tweaking the definition above as well as chasing down some of the hyperlinked references.

Bottom-up contextual libertarianism

Libertarians love to contrast bottom-up market solutions with top-down government mandates. A demand – or the potential for demand that may develop with creative persuasion – is discerned and the savvy entrepreneur employs unique localized knowledge to meet the need. An individual is situated in a particular set of circumstances, with a particular history and set of skills, contacts, prejudices, desires, etc. How the individual interacts with the market is contextual in a way no central planner can appreciate. Given the freedom to exchange and a trustworthy currency, the decentralized actions of individuals in their particular contexts spontaneously generate a market order whereby the aims of far-flung strangers are furthered.

But libertarians often approach their own political philosophy in an ironically top-down way. Libertarian theories are often based on one or a few abstract principles (the non-aggression principle, and hardcore property rights that the NAP is parasitic upon), and then let the chips fall their where they may for the applications of the theory. This may seem “bottom-up” in a facile way, starting from a foundation and building on top of it. But this is really the blueprint of a central architect. There’s none of the characteristic duct tape and kludge of a complex adaptive system, none of the quirky diversity of individual purposes.

In a “Libertarian Case for Bernie Sanders“, Will Wilkinson contrasts the project of developing a theory of liberty from abstract principles with the alternative approach of jotting down already deeply held values and trying to build a workable theory of liberty from there. Forgive the long quotation, but Wilkinson writes better than I can summarize:

Thomas Reid, the Scottish Enlightenment philosopher, pointed out that there are two ways to construct an account of what it means to really know something, rather than just believing it to be true. The first way is to develop an abstract theory of knowledge—a general criterion that separates the wheat of knowledge from the chaff of mere opinion—and then see which of our opinions qualify as true knowledge. Reid noted that this method tends to lead to skepticism, because it’s hard, if not impossible, to definitively show that any of our opinions check off all the boxes these sort of general criteria tend to set out.

That’s why Descartes ends up in a pickle and Hume leaves us in a haze of uncertainty. It’s all a big mistake, Reid said, because the belief that I have hands, for example, is on much firmer ground than any abstract notions about the nature of true knowledge that I might dream up. If my theory implies that I don’t really know that I have hands, that’s a reason to reject the theory, not a reason to be skeptical about the existence of my appendages.

According to Reid, a better way to come up with a theory of knowledge is to make a list of the things we’re very sure that we really know. Then, we see if we can devise a coherent theory that explains how we know them.

The 20th century philosopher Roderick Chisholm called these two ways of theorizing about knowledge “methodism”—start with a general theory, apply it, and see what, if anything, counts as knowledge according to the theory—and “particularism”—start with an inventory of things that we’re sure we know and then build a theory of knowledge on top of it.

The point of all this is that an analogous distinction applies to our thinking about politics.

Suppose you’re especially interested in liberty, as I am. If you’re a theory-first methodist, what you’re going to do is concoct a general theory of liberty and then use it to tell you what a maximally free regime looks like. I think the analogy to theories of knowledge is very good here, since strong theory-first libertarians often come to the conclusion that no state-based regime can ever qualify as fully free. This amounts to deep theory-driven skepticism about government that’s a lot like deep theory-driven skepticism about knowledge. But then, well… what? I can’t tell you for sure that I’m not stuck in a computer simulation, so I don’t know that I have hands. And I can’t tell you for sure how to square my intuitions about coercion and consent with the legitimacy of government (or property, for that matter). Okay. Sure. So what now? We’ve got to get on with life. What gloves should I buy for my maybe-computer-simulated hands? What kind of maybe-illegitimate government should we want to live under?

Wilkinson notes that this does involve a proto-theory of liberty – or more generally, a proto-theory of politics or of the good. But this proto-theory can be revised after life and dialogue with others persuades us we’ve maybe got something a little out of whack here or there.

Bottom-up capabilities

Wilkinson specifically mentions the evidently flourishing nations earning places of prominence in the Fraser Institute’s 2015 Human Freedom Index (pdf), which tracks various kinds of freedom, from rule of law and stable government to ease of starting a business and freedom of movement. Wilkinson suggests that these nations, even though they include anti-libertarian things like socialized health care and high levels of wealth redistribution, nevertheless also perform better than other nations at ensuring negative liberty for their citizens, the kind of liberty qua freedom-from-coercive-constraint that libertarians cheer. Questions of legitimacy and coercion are important, but as Loren Lomasky and Fernando Tesón point out in Justice at a Distance, even if no government is fully legitimate, there are surely degrees of legitimacy, and the Fraser Institute’s favored nations must rank highly in relative legitimacy.

Wilkinson’s “data-first particularism” reminds me of the capabilities approach, and my own writing on how it and libertarianism might be joined. The capabilities approach does not begin with simple premises and derive from there. In thinking about capabilities you first consider all the things a flourishing life comprises and then you try to kludge together a halfway coherent theory to underpin them. Or you begin with obvious injustices or social diseases and work out your theory to avoid these pitfalls. Consider a world

where enforcement of property rights is perfect and government violence is minimal, but where all the property is owned by a rich, cohesive majority group, large enough to function economically on its own. Further, members of the majority loathe the minority group, and uniformly refuse to sell or lease them property; neither will they employ them except perhaps for dangerous or degrading jobs for exploitative wages; neither will they educate them in their first class schools.

To echo Wilkinson (and Thomas Reid), if your theory says that a rigid caste society is okay as long as property rights are protected, then that is a reason to reject your theory, and not just a tasty bullet to chomp down on. Wilkinson’s question, “What kind of maybe-illegitimate government should we want to live under?” can be answered: one that is empirically most consistent with the advancement of human capabilities.

Contextual politics

My fellow Sweet Talker Sam Hammond has discussed something very similar to what Wilkinson is driving at, a means to build politics from the bottom up. With characteristic brilliance, Sam has described a secular analog to that old chestnut, the Euthyphro dilemma.

[T]he original dialogue between Socrates and Euthyphro was not really about the nature of god, but about the nature of normative authority more generally. By being constant through time and space and separate from human particularity, God simply reflects the idealized universality and generality which we seek in our principals of justice.

In lieu of god, secular moral philosophy from Kant on has been trying to somehow leverage sureness back into our moral sense through convoluted transcendental arguments. Such efforts usually involve the metaphysical construction of an “ideal self” in some ideal scenario behaving in ideal ways to which we must all rationally assent. Our secular Euthyphro dilemma thus becomes: Are our abstract moral theories based on what is right, or is what is right based on our abstract moral theories? Against any Kantian construction, the dilemma is no less powerful as when levied against divine command.

In a subsequent post, Sam defends Ordoliberalism as a practical approach to building politics from the bottom up.

In this view, law is a public good that must be calibrated to encourage co-ordination. On the other hand, ignoring the societal outcomes of a legal system based on the dogma of natural rights leads to disaster. For example, in the early 1900s the cartelization of the German economy was upheld by “laissez-faire” courts emphasizing the inalienable right of freedom to contract. Ordoliberals recognized the dramatic expansion of cartels as a key factor behind the rise of national socialism, and thus made competition law a central plank in their post-war project.

To Ordoliberals, the property system, including contract and liability law, was itself as much a type of competition policy as anti-trust measures like explicit acts prohibiting monopoly. This point of view is sometimes referred to Ordnungspolitik, an organic conception of regulatory policy as integral to and a part of economic order. The Ordo Yearbook of Economic and Social Order was thus one of the earliest academic journals to publish what today is called law and economics, public choice theory and constitutional economics, with a special emphasis on limiting the influence of rent seeking through a strong, independent state apparatus. Note that these are all fields which blur the line between market and state, consistent with the interdependence thesis.

[…]

This focus on path dependency and public choice helps the Ordoliberal dissolve the dogmatic debates between “capitalists” and “socialists”. For example, in a dynamic world it may very well be the case that public pension plans are pro-market. From a public choice perspective, corporate welfare policies like auto-industry bailouts are a clear consequence of special interest lobbying through trade unions. Looking closer, the bailouts are less about the company as they are about shoring up massive pension liabilities. Thus an Ordo could argue that to oppose an actuarially transparent public pension scheme is to tacitly support the maleficent alternative.

Emphases mine. Just as Wilkinson observes that we find ourselves in a state and must get on with it, Sam suggests that the lines between the state and the market are and must be blurred. The market is contingent upon the legal order even while legal rules must be made in accordance with economic principles and human nature if they are to be socially useful, or in my language, capabilities-enhancing. Culture and institutions interact with the market, government, and politics in complex ways. The same laws will not necessarily have the same social effects where norms of strong family bonds prevail, for instance. And feminist consciousness, a communications revolution, or an extended economic upswing can influence both the public policies that are demanded as well as the effects of those policies when in place. The dynamic interplay of economics, the law, politics, and culture amid pervasive political disagreement and our own uncertainty is far too complex and open-ended for any central planner to successfully manage, whether that central planner is the Politburo or the ab initio political theorist, libertarian or otherwise.

Libertarians who so often understand the importance of particular context in the market rarely understand that politics also is contextual. What Will Wilkinson, Ordoliberals, and capabilitarians can all teach us is that politics pervades our social lives, and our disagreements cannot be idealized away. While inconvenient for some, this is not a tragic truth.

Embracing the tension

One of the reasons I like virtue ethics over other ethical approaches is because virtue ethics starts complicated and muddles along from there. Deontology and utilitarianism begin with one or a few simple, abstract principles and then – if you’re doing it right – they get more complicated. I’m not so partisan to believe that ethics can’t be understood well with these latter approaches, but I do think that starting simple and adding complexity sets one up to favor the singular master principle over the countervailing considerations that have been acknowledged by more sophisticated theories as exceptions, side constraints, provisos and the like. Virtue ethics, by contrast, begins with many principles (the virtues) that have pretty much equal weight. The multiple virtues can exist in tension with one another,* and the ethical agent’s task is to carefully discern which virtues are salient for a given problem. The obvious drawback is that action guidance is tricky with virtue ethics. “Use your judgment. Best of luck!” is cold comfort. But the retort is that the simpler action guidance of single-value ethics is an illusion – judgment is still required for interpreting how the abstract principle translates to real life.

I admire the capabilities approach for social analysis for similar reasons. Gross national product (or income) is a great metric with a lot of things going for it. But it is still one-dimensional and inevitably leaves out crucial concerns, like the persistence of poor health outcomes relative to comparably wealthy countries, or significantly worse social outcomes for particular groups (e.g., blacks in America). In my capabilitarian analysis of libertarianism, I criticized the tendency of many libertarians to tout a political philosophy that is so simplistic it fits on a bumper sticker (e.g. the non-aggression principle or the reduction of everything to property rights). The Left sometimes sounds just as monist with its emphasis on income (or wealth) equality as social panacea. The capabilities approach instead offers multiple poles of value, many of which exist in tension with one another. Private property is essential for personal empowerment, but not at the expense of leaving some so poorer in relative terms that they cannot show their face in public without shame. Freedom of association is respected, but not if some group is so marginalized that its members suffer stunted employment or social prospects. Etc.

I’m beginning to see this general structure all over. Conservative states rights enthusiasts have good reasons for preferring political power to be localized, but progressive skeptics are right to point out that unchecked local authority can endanger the rights of disfavored individuals in those localities, rights that should be universal. The wisdom of federalism lies in affirming both these positions, and allowing voice and exit to do their work. In the ideal case, loyalty itself is significantly divided between different loci of influence (e.g., province vs central government, state vs church, etc).

Sam Hammond has recently written about the foundational social virtue of liberal neutrality. He argues persuasively that liberal neutrality arose in response to literal wars between factions with incommensurately opposed conceptions of the good. Adam Gurri has argued that there are limits to what can be tolerated as part of liberal neutrality, and further that these limits are themselves politically determined. I agree with both the value of liberal neutrality and Adam’s critique. Indeed, I had a remarkably similar conversation with Adam, but with roles reversed, over how liberal neutrality applies to the capabilities approach. As I put it in that discussion,

While an individual surely has reason to value their affiliations and group identities, they shouldn’t be held hostage to those affiliations and groups. And if an individual while growing up is not taught to read, not granted wide access to uncensored information, not encouraged to be curious about that information, and effectively prevented from social contact with nonmembers of their group, then that individual effectively is a hostage. […] The point is that there must exist some limiting principles by which some social context an individual is raised in is deemed too restrictive to qualify as fertile for the “development of independent practical reasoners”. Honestly, I don’t see how MacIntyre’s project of developing such reasoning individuals can deny the existence of such disqualifying social contexts, even if the specification of limiting principles is left murky and subject to political contest.

Even more recently, these pages have seen a discussion (not so much a debate, really) of the tension between recognizing the power of situational influence on ethical behavior and maintaining a sense of moral responsibility. Situational influence is real, and can’t be overcome by strength of will alone. But allowing this to negate moral culpability results in just another kind of insidious situational influence facilitating evil or unwholesome behavior. Instead, a virtue of cultivating morally enriching situational contexts and avoiding “bad barrels” is needed. Or, as Sam says,

The upshot is that we shouldn’t stop holding people accountable for their actions just because the situation they somehow found themselves in made shirking their moral duties the path of least resistance. Indeed, just the opposite. Employing techniques of neutralization, as a self-serving behavior, should itself be an object of social sanction. Moreover, it means there’s a chance we can preempt our techniques of neutralization by being aware of them, and by training ourselves in strategies that undercut self-delusion.

A few days ago I made the argument in private conversation that the family, if it is shielded too jealously from public eyes and the considerations of justice – the way it was shielded until the feminist revolution began the slow process of extending transparency and equality into the home – is ripe for abuse. A fellow Sweet Talker said they were none too impressed with this critique of the family. After all, “every attempt to meddle in the family from larger units of analysis has been catastrophic.” Perhaps every attempt to recast the family according to some ideal in a top-down fashion has backfired. But feminist consciousness raising – a bottom-up approach to social change – has had enormous beneficial consequences for women (and for men and children too, I would argue). But the escalating argument with my fellow Sweet Talker miscarried sans drama when we both readily agreed that “vulnerability is inevitable.” Indeed, the family, imperfect though it is, is critical for developing moral, independent persons while also providing such individuals with a haven of unconditional love and social support.

embracing-tension
The Sweet Talk approach to embracing tension.

The point of this little series of vignettes is that life is full of conflicting values. The common mistake is to see the importance of one value and in response become blind to contrary values. So the NAP-obsessive libertarian sees the coercion at the heart of the state and becomes blind to non-state instances of coercion and exploitation. The incautious progressive fetishizes wealth inequality and condemns market institutions amidst what is far-and-away the most prosperous era in all human history (even for the poor). The unreformed traditionalist sees the family ever under threat from modernizing forces, but is blind to the stifling oppression that traditional families can foster. And the unreflective feminist sees only the elements of domination and downplays the critical role that the unchosen bonds of family play in nurturing individuals. There are many values, and no sure-fire algorithm to help us decide which values are most salient for which situation. But this is no call to relativism. We open ourselves up to charlatans if we believe that every side of every debate always has something worthwhile to contribute. How then do we proceed?

Use your judgment. Best of luck!

*Those who affirm a “unity of virtue” thesis might quibble with this, saying the virtues can’t contradict one another. For example, machismo isn’t really courage because machismo is imprudent by definition. Machismo and courage are the same kind of mindset in the rough draft understanding of some situation. The rough draft is revised by applying judgment and considerations from the other virtues. The virtues are often in tension in the first impressions phase of moral deliberation.