Justice as Intrinsic & Instrumental in Plato's Republic

I am interested in the relationship between justice as a means and as an end because those aspects separately and their standing with respect to one another are integrally—that is to say inseparably—involved in how we think about ethics generally and in specific cases.

For instance, recent, disturbing race-related violence by police officers toward certain citizens in the United States and then the assassination of 5 Dallas officers and the wounding of many other police and civilians raised complicated questions about what is right, fair, and valuable in itself, about the nature and extent of contemporary prejudices, and about the use of violence in service of conceptions of justice.  Similarly, the recent decision by the U.S. Justice Department and its Federal Bureau of Investigation not to indict Hillary Clinton despite the overwhelming evidence of her violations of standard federal security procedure strikes many observers as unjust. This is so not only because the decision seems to contravene obvious desert (the FBI does not doubt what she did), but also because, notwithstanding Director Comey’s (knowingly erroneous) denial that positive intention is required for a violation of the law, it raises questions about whether some supposedly greater purpose like social and political harmony in an election year outweighs the upholding of the law for its own sake or even as a deterrent to future security mismanagement.  Is justice, we might wonder, something good in itself and to be pursued for that reason, or because of the ranked purposes that it may serve?

United States citizens in 2016 are not the first persons or society to entertain these questions.  The ancient Greeks anticipated contemporary Anglophones in this as in many areas, particularly Plato.  It may be timely and to our profit then to ask this:  Is justice in his Republic an intrinsic and an instrumental good, as Socrates promises to prove to his interlocutors? Or does he only show that it is an instrumental good, in which case Glaucon's ventrilloquism for Thrasymachus (i.e., voicing the latter’s position for the sake of argument) is more on the mark?

In what follows I wish to explore this important question about justice as an instrumental and a final good through the lens of Plato’s Republic.  Socrates contends that justice is both intrinsic and instrumental.  How does he argue for that conclusion? How might this help contemporary societies understand both justice and the proper relation and pursuit of various ethical, social, and political goods?

The Ethical Imagination of Art

Why, when we see acts of apparent selflessness, do we often swell with emotion?

Why, to put an even finer point on this, when we observe even fictional gestures of sincere compassion, do we pause, tear up, reach for a tissue or a nearby loved one, and become seized with something that transcends admiration -- something that feels like melting?

Art, in its various forms, uniquely taps into the human imagination, grips our emotions, and, if we listen, instructs.  Take, for example, the following short video clip, which of late, and deservedly, has been making the social media rounds.

(The YouTube link for the video is here.

The brief article about the video from Gawker is here.)

Revisiting Just War Theory

On August 11, Jean Bethke Elshtain passed away after a remarkable academic career.  I first became familiar with her work some years ago while working on a term paper for an ethics course.  The subject of the paper was whether violence in defense of justice was ever legitimate.  Professor Elshtain wrote with vigor and clarity on just war theory and its application to contemporary geopolitical problems.  Both in honor of her passing and in view of the current debate in the United States about a potential military strike on Syria (President Obama intends to address his nation during prime time tomorrow), I thought it worthwhile to revisit the criteria for determining the legitimate use of violence in defense of justice that she helped to refine.

Law and Moral Philosophy

Yesterday Robert H. Bork died.  He was as polarizing a figure in American culture, politics, and jurisprudence as he was significant.

In recognition of his significance, the editors of The Wall Street Journal compiled excerpts from a number of Judge Bork's writings.  One of those in particular struck me as worth reproducing.  It concerns the public perception of law and morality.  This perception, often confused, is a subject that I have noted previously (e.g., here, here, and here).

A person does not need to agree with Judge Bork to acknowledge the helpful clarity of his thinking and how that lucidity, even incisiveness, contributes to public discourse about matters of substance.

OPINION

The Wall Street Journal

The Wisdom of Robert Bork

  “Their Will Be Done,” July 5, 2005

Once the justices depart, as most of them have, from the original understanding of the principles of the Constitution, they lack any guidance other than their own attempts at moral philosophy, a task for which they have not even minimal skills. Yet when it rules in the name of the Constitution, whether it rules truly or not, the Court is the most powerful branch of government in domestic policy. The combination of absolute power, disdain for the historic Constitution, and philosophical incompetence is lethal.

The Court's philosophy reflects, or rather embodies and advances, the liberationist spirit of our times. In moral matters, each man is a separate sovereignty. In its insistence on radical personal autonomy, the Court assaults what remains of our stock of common moral beliefs. That is all the more insidious because the public and the media take these spurious constitutional rulings as not merely legal conclusions but moral teachings supposedly incarnate in our most sacred civic document.

A version of this article appeared December 20, 2012, on page A19 in the U.S. edition of The Wall Street Journal, with the headline: The Wisdom of Robert Bork.

Ancient Greek Tragedies and Our Own

I have been rereading some ancient Greek tragedies, and I am impressed by how relevant their themes remain, especially for our struggles in families and societies.

Making Sense of Wilson, pt. 9: Universal Impulse

In a prior post in which I reflected on James Q. Wilson's book The Moral Sense, I drew attention to the universal impulse in moral sentiment that he identifies:  "The most remarkable change in the moral history of mankind has been the rise -- and occasionally the application -- of the view that all people, and not just one’s own kind, are entitled to fair treatment" (191).  Because it is so remarkable, and because it has such sweeping implications, it is worth probing further this topic about the development of universalism in moral thinking and practice.

We can begin by focusing on a question that Prof. Wilson himself poses:  "How can we explain the great expansion of the boundaries within which the moral sense operates?  How, in particular, can we explain why we believe that moral rules ought to have universal applicability?  This aspiration toward the universal is the chief feature of the moral history of mankind" (194).  Indeed.

Professor Wilson suggests that the long development of consensual marriage, particularly in northwestern Europe, helps to provide a key, but not the only, component of an explanation.

The link between the two, consensual marriage and universal moral applicability, may not be immediately apparent.  The tie, however, is the parallel development in northwestern Europe of individualism.  What is the connection?

Terminating 2 at 20

Exercising her right to choose ... to kill her twins.

I ran across a disturbing opinion column from one week ago about a woman in Florida who was pregnant with twins.  "Was."  She is pregnant no longer.

No, she was not a sad victim of urban violence -- but her twins were.  She terminated them at twenty weeks of gestation.  She ended their lives half-way through her pregnancy.  Why?  For the supremely sensible reason that ... she just didn't want them, and she felt nothing for her twin children.

The website on which the column appears is littered with annoying political ads, and the column itself ends with an appeal to "the church" that may not make sense to readers or even follow from the text that precedes it.  But what the column does do well is to bring to attention how commonplace this sort of ending of innocent life is in the United States.

It also prompts questions in my mind about what sort of person possesses such a psychological and emotional disposition that she does not think twice about killing the two twin children who are so visibly alive and growing in her womb.  What really causes a person to feel and act that way?

Testing Tolerance

Until now I have tried to stay above the fray involving Chick-fil-A.  I post this only to say that the main point of an editorial in today's The New York Times strikes me as correct:  Government officials, such as the mayors of Boston and Chicago, the Speaker of the New York City Council, and an alderman of Chicago, ought not to discriminate against a lawful business enterprise on the basis of the personal views of the business owner.  Those officials have said that they would block additional expansion of Chick-fil-A franchises in their jurisdictions.

The editors at the Times, as well as NYC mayor Michael Bloomberg, hold a view of the permissible parties involved in and the moral nature of marriage that is opposed to that of Chick-fil-A owner Dan Cathy.  What they both accurately recognize, however, is that the public relations campaign and business threats by government officials against Mr. Cathy amount to intolerance of his religious beliefs and his entitlement both to hold and to express them.  As Mr. Bloomberg is quoted in the editorial as saying, “You can’t have a test for what the owners’ personal views are before you decide to give a [business] permit to do something in the city.”

The Chicago and Boston mayors', the NYC councilwoman's, and the Chicago alderman's views are intolerant because they seek to deny public rights (the rights to pursue property and lawful enterprise) as an attempt to censure private rights (the rights to free religious belief, free speech, and liberty of conscience).  These officials may attempt this in protest to, or as an expression of disagreement about, some other closely-held matter, but they are still intolerant.

And they are intolerant, moreover, because they deny in practice something at the heart of political liberalism, the fact of reasonable pluralism.  In a contemporary democratic society, John Rawls observes, the fact of reasonable pluralism is "the fact of profound and irreconcilable differences in citizens' reasonable comprehensive religious and philosophical conceptions of the world, and in their views of the moral and aesthetic values to be sought in human life" (Rawls, Justice as Fairness, 3).  The government officials do this -- deny in effect the fact of reasonable pluralism -- precisely by seeking to banish from their political communities (because they cannot be tolerated) those who differ in moral and civic viewpoints from them.  They do not accept profound and irreconcilable differences in worldview; they wish to eliminate them.  The officials make no room for public debate about how to balance in the community all agreed upon liberties with those that may be disputed.  In fact, they make little to no room for the exponents themselves who hold and express differing viewpoints.

In this vein, a creative thought experiment was narrated by Mona Charen in a column that she titled "Al-Rahim and Chicago Values."  She describes a situation in which a Muslim business owner of convenience stores articulates to a Muslim periodical his belief in the traditional, Quranic view of marriage, which is a man's having not more than four wives.  Apparently this differs from the view of marriage held by the mayors of Chicago and Boston, who go on record that they will do all within their power to prevent him from opening up more convenience stores in their cities, because his personal beliefs about heterosexual matrimony are at odds with their and their cities' approach to marriage and civil unions.  What would the response be to this Muslim man's comments?

This is a thought experiment, because it is retelling the story of Mr. Cathy as Mr. Al-Rahim, the story of a Christian businessman's expression of his personal viewpoint as the story of a Muslim's.  As Ms. Charen explains, "Rahim is an invention to illustrate the selective outrage of liberal Democrats. It is simply impossible to imagine that liberal Democrats would treat affirmations of Muslim faith with the kind of bullying that Cathy and Chick-fil-A have received.  Yet Islam is at least as doctrinally tough on homosexuality as Christianity is, and considerably tougher in practice."

The fact of reasonable pluralism, as Prof. Rawls understands it, is an unavoidable fixture of contemporary democratic republics such as the one in the United States.  It is also, as the present brouhaha attests, difficult to navigate in conjunction with a commitment to the core and treasured liberties of the moderns:  freedom of thought, speech, property ownership, and liberty of conscience.  (I borrow the phrase "liberties of the moderns" from Prof. Rawls; see Justice as Fairness, 140-45.)  As much as definitions of fairness still need to be clarified carefully, about which I wrote in a previous post, so, too, does the concept of tolerance.

Tolerance of a belief is not the same as acceptance of that belief.  In my view, however, in common, everyday practice, tolerance has become in many people's minds synonymous with conforming to, or acceptance of, their viewpoint.  This conception of tolerance is the converse of the popular conception of intolerance:  If you accept my view about P, then you are tolerant; if you do not accept -- do not agree with, do not conform to -- my view about P, then you are intolerant.  Disagreement is designated intolerance; reasonable difference of opinion is often quickly labeled bigotry.

But this popular conception, where it prevails, not only may serve as easy ad hominem argumentation.  This conception evacuates tolerance of all its meaning, for tolerance assumes non-acceptance.  It presupposes disagreement.  It says that a differing viewpoint and the one who holds it are not to be excluded from public discourse and the public square.  Reasonable disagreement will be endured and respected -- tolerated.  By contrast, to be intolerant is to be unwilling to grant equal freedom of expression or to penalize people unjustly for making free expressions.

The fact of reasonable pluralism tests real and workable conceptions of tolerance.  We may not agree with the fictional Mr. Al-Rahim's endorsement of traditional, Quranic marriage.  We may object to the real-life Mr. Cathy's advocacy of traditional marriage as a conjugal union.  These sorts of expression of speech and conviction of conscience are rights protected by the Constitution and enshrined as Constitutional essentials.

What we may not do, however, is this.  In advocating for fairness for all, we may not practice a selective view of fairness for some.  In an attempt to prevent certain Muslims and Christians from supposedly treating a group as separate but equal (for so goes the argument for same-sex "marriage"), we may not treat these Muslims and Christians themselves as separate but equal.  We may not, in other words, claim that they are equal but seek to separate them from our civic and business life.

But this is what the mayors of Chicago and Boston have done.  They say, "You may have your beliefs, but you cannot pursue your conception of life, liberty, and the pursuit of happiness in our community through your business enterprise.  You are equal, but you must remain separate from us.  We can discriminate, but you cannot."  In so doing, that is, by practicing a real separate-but-equal approach to matters of freedom of speech and lawful employment, these officials have undermined their professed moral justification for same-sex marriage on the basis of the same, namely, ending a purported practice of separate but equal.

Whether, in fact, the debate about the definition of marriage admits, as some parties believe, the separate but equal line from Plessy v. Ferguson (1896) is another matter.  The black community, for instance, does not on the whole view the subject in that light, and they might be positioned better than others to know separate but equal when they see it.  Separate but equal sounds nice; it is a powerful sound bite with a known civil rights pregnancy; but I am not sure that upon closer inspection it fully applies.  The debate about marriage seems to me fundamentally about the wisdom and propriety of redefining -- and thereby changing -- an indispensable cultural/civil (and arguably religious) institution, as well as about the moral consequences entailed by such a redefinition.

Be that as it may, the mayoral hubbub about Chick-fil-A demonstrates the ways in which so-called tolerance is frequently championed but inconsistently practiced.  For calling out what would amount to unjust policing and penalizing of law-abiding citizens and businesses for protected First Amendment rights, The New York Times editorial board is to be commended.

A Taxing Problem

Ari Fleischer writes in an op-ed in Monday's The Wall Street Journal about the latest Congressional Budget Office (CBO) report on U.S. taxation.  Mr. Fleischer discusses this in connection with the presidential campaign rhetoric about the income tax system.  He produces a graph, similar to a table produced recently by Harvard's Greg Mankiw, that helpfully illustrates the actual distribution of taxes paid by income level.

Mr. Fleischer's main point is this:  "If fairness in paying taxes means the amount you pay is based on the amount you make, then the only group in America paying at least a 'fair share' is the top 20% — people who make more than $74,000. For everyone else, the tax code is a bargain."  He substantiates his position based on a comparison of data that is summarized in the following graphic.

Based on the CBO report, Mr. Fleischer examines "the top 20% of income earners (over $74,000).  They make 50% of the nation's income but pay nearly 70% of all federal taxes.  The remaining 30% of the tax burden is borne by 80% of the taxpayers, those who make less than $74,000. In short, this group's share of taxes paid, 30%, is lower than the share of income they earn, 50%."

He compares not just income level to percentage of federal taxes paid in the period under review (through 2009).  He also tries to put this into historical perspective:

the share of taxes paid by the top 20% has gone up over the last 30 years, while the share of taxes paid by everyone else has gone down. … The top 20% in 1979 made 44.9% of the nation's income and paid 55.3% of all federal taxes. Thirty years later, the top 20% made 50.8% of the nation's income and their share of federal taxes paid had jumped to 67.9%. … Meanwhile, the federal tax burden on middle- and lower-income earners is lighter. In 1979, the bottom 20% paid barely any taxes at all, just 2.1%. Now their share of taxes is a minuscule 0.3%.

I doubt that the data that Mr. Fleischer presents will be disputed.  What will be disputed is his interpretation of the data.  It is important to remind ourselves of this distinction (data and interpretation of it), even generally, because it will help to clarify the moral issues that are debated and thereby to promote improved public discourse.

Although I sympathize with the perspective that Mr. Fleischer advances, I also think that he misses something critical to the ongoing national conversation about monetary and tax "fairness."  This is a complicated topic, but let me offer one observation.

When the president and others object to the current tax system on the grounds that many citizens do not pay "their fair share," they are objecting, among other things, not just to the rate at which certain citizens pay taxes (that the rate is too low) but also to the level of income on which taxes are paid (that the level is too high).  It is both the tax rate and income level, taken together and with a view to a certain social end, that is viewed as unfair.

To say the same thing slightly differently, the issue in question is both the progressivity of the tax system and the spread between income levels.  The wide spread between income levels now versus thirty years ago -- that is, the difference in earned income between the top and bottom quintiles -- may in fact be what prompts the outcry for greater progressivity in taxation than prevails at present.  (This income discrepancy, by the way, is not a uniquely American phenomenon.)  

I suspect that if the spread were narrower, then demands for greater tax fairness might be more muted.  If some people did not make so much more money than others, then the issue might not seem in certain quarters to be so problematic.

This is important to note.  It is a sense of unfairness about the spread between income levels that is effectively prior to -- and therefore it is this that motivates -- the sense of unfairness about the spread between average tax rates and share of income taxes paid.  The widening income gap seems to some to be wrong (unfair); so current taxes paid on the high levels of income also seem to be wrong (unfair).  At issue, in other words, is the understanding of fairness itself.

Mr. Fleischer himself seems to recognize this, which is why he begins the op-ed in the way that he does, namely, by proposing one understanding of fairness:  that "the amount you pay is based on the amount you make."  This is fairness as equity.

His construction helps him to make his case, since he presents his data in light of that construction.  He spotlights disparities in taxation relative to earnings.  He, too, identifies unfairness; however, it seems to him to be "unfair" to those who have higher incomes.  It is not unfair because they have higher incomes.

When viewed thusly, Mr. Fleischer's objection may not be to progressivity itself but to the degree of progressivity:  that discrepancy in taxation is out of proportion to the discrepancy in income earned; it is too progressive; this spread is too wide.  It is not equitable.  The increase in the amount of taxes paid is greater than the increase in the amount of the nation's income earned.  (See the nearby table.)
 

But others will object that "fairness" is not really or ultimately to be conceived in terms of the amount of tax that one pays compared to the amount that one earns.  If it is, Mr. Fleischer will probably win the argument on that assumption along the lines of his op-ed.  According to his detractors, however, fairness is not a matter of proportionality in Mr. Fleischer's sense, whether proportionality of contributions or proportionality according to merit.  The driving sense of fairness on their view is not one of fairness as equity, but fairness as equality.

On this view, fairness is that system which leads to more equal social outcomes regardless of contributions or merit.  (In some versions it may perhaps be fairness precisely in contradistinction to them.)  It is fair to tax people differently, often very differently, if it is done with the goal of making more equal the primary goods of income and wealth (often through federal programs) across society but especially among those defined as the least advantaged.

This view, as I have articulated it, echoes that advanced by John Rawls, justice as fairness, a theory in which what he calls the "difference principle" operates:  "the difference principle requires that however great the inequalities in wealth and income may be, and however willing people are to work to earn their greater shares of output, existing inequalities must contribute effectively to the benefit of the least advantaged.  Otherwise, the inequalities are not permissible" (John Rawls:  Justice as Fairness:  A Restatement, 64; see also 122-24).

According to Prof. Rawls, the operative principle is not equity but his own special brand of reciprocity.  (I say that it is special because reciprocity is usually, is ordinarily, an in-kind exchange between two parties, whereas that in view in Prof. Rawls's theory involves unlike transfers among multiple parties.)  A controlling idea, then, in Prof. Rawls's view of justice, which has been in the air that many government officials have breathed for the last forty years since he first proposed it in 1971, has to do with acceptable differences across society as judged by a notion of reciprocity.  And it is this notion of reciprocity that sheds light on one current group's sense of fairness:

To sum up:  the difference principle expresses the idea that, starting from equal division, the more advantaged are not to be better off at any point to the detriment of the less well off.  But since the difference principle applies to the basic structure, a deeper idea of reciprocity implicit in it is that social institutions are not to take advantage of contingencies of native endowment, or of initial social position, or of good or bad luck over the course of life, except in ways that benefit everyone, including the least favored.  This represents a fair undertaking between the citizens seen as free and equal with respect to those inevitable contingencies. (124)

Professor Rawls advances this notion of justice as reciprocity, or fairness, by way of a thought experiment:  what sort of society would representatives behind a veil of ignorance choose to create in a hypothetical original position?  Policymakers advance something akin to this notion of justice as fairness not in an original position but at a different stage; they regulate society that is in its current position with constitutional essentials already settled.  The goal of many current policymakers is, with reciprocity as a guiding light, to make progress toward the ideal through social and economic legislation and through the administration of related rules (see 47-49).

When politicians say that they only want the group with greater monetary wealth to pay its fair share of taxes, they do not refer to the statistics that Mr. Fleischer adduces.  They appeal, instead, to a moral idea that is not dissimilar to that of Prof. Rawls's, even if it is not directly dependent on his teaching.  The moral idea is that such a wide discrepancy in income as exists now between the top 20% of earners and the bottom 20% of earners -- which has widened over the last thirty years -- is permissible if and only if the wealth amassed by the top 20% works to the greatest benefit of those in the bottom 20%.

These politicians believe that such a benefit has not been realized.  Because the more advantaged seem to be better off to the detriment of the least advantaged, it follows for them that unfairness exists and that greater taxation is a justified means of producing fairness.  And fairness is what would be to the greatest benefit of the least well-off.  Increased taxation -- which is a form of coercive state power -- on one group of society is a justified means of producing "fair undertakings," or just plain fairness, for the rest or whole of society.  Hence, "fair share" on this view is the share that secures a fair distribution of monetary goods across society.

The debate about taxation, precisely because it is tethered to the ongoing debate about the best American political scheme for the future, is not going away soon.  It is therefore critically important to make explicit the assumptions about what is fair that are often unarticulated but that are nevertheless powerfully at work in people's thinking and speaking.  Taxation is a material manifestation of a more formal matter:  competing conceptions of fairness.

Until and unless we engage each other candidly at the formal level, inquiring sincerely about a person's view of fairness and pressing respectfully why that person believes in this sense of fairness and not another, we will be fruitlessly volleying material arguments back and forth.

Making Sense of Wilson, pt. 2: Sympathy

In part 1 of this series of my reflections on James Q. Wilson's book The Moral Sense, I summarized the book's main aims and shared a few of the most salient points that I found of conceptual and practical value.  In this post, I begin to tackle the book's second section, which examines four key moral sentiments:  sympathy, fairness, self-control, and duty.  Specifically I focus on sympathy.

As preparation for a review of moral senses such as sympathy, it may be helpful to recall what Prof. Wilson is and is not doing by exploring these sentiments:

I am not trying to discover "facts" that will prove "values"; I am endeavoring to uncover the evolutionary, developmental, and cultural origins of our moral habits and our moral sense. But in discovering these origins, I suspect that we will encounter uniformities; and by revealing uniformities, I think that we can better appreciate what is general, nonarbitrary, and emotionally compelling about human nature.  (26)

In the chapters on the four moral sentiments, Prof. Wilson does just this.  He weaves together the evolutionary, developmental, and cultural origins of these respective moral habits and senses.  In doing so, I find his descriptive observations -- which are helpful in their own right as an organizing heuristic for thinking about moral matters -- to pull me toward practical considerations and action.

I offered a few remarks on sympathy, "the human capacity for being affected by the feelings and experiences of others" (30), in the earlier post.  It helped to exemplify the basic approach to the subject that Prof. Wilson takes.  Sympathy, like the other sentiments, functions in human life as both a motivation for moral action and a standard for it.  A few other brief notes are worth mentioning.

In all of his chapters on the sentiments, if to varying extents, Mr. Wilson explores the relevance of evolutionary biology on the moral sense in view.  The theory of inclusive fitness, advanced by William Hamilton after Charles Darwin, fills out the latter's theory of a species' successful self-propagation over time:  "An individual is reproductively successful to the extent that his genes occur in the next generation, and he can assure that occurrence not only by reproducing himself but also by assisting in the reproduction of individuals who have his genes" (41).

Professor Wilson admits that this theory might explain why we humans sacrifice ourselves for our kin, but it does not go very far in explaining why we humans are willing to sacrifice ourselves for our grandmother, who is past childbearing age and cannot deposit genes to future generations.  It also does not explain why we may rush into a burning building to save a dog or adopted children, with whom we have no genetic similarity (42).

Maybe the notion of reciprocal altruism can help:  "we engage in altruistic acts -- such as helping nonrelatives, caring for adopted children, or being affectionate toward pets -- in order to impress others with our dependability and hence to increase our opportunities to have profitable exchanges with these others" (43).  Mr. Wilson points out that as an explanation this utilitarian idea has truth elements to commend it, but a more basic motivation -- "a prior, dominant fact" (44) -- must be recognized.  We more basically value reciprocity in human relationships to which we are naturally drawn because we fear isolation and loneliness and we value human sociable companionship.  This human trait governs the theory of altruism, and it is at the heart of sympathy.

What can be said about evolution and sympathy, then, is this:  "If sympathy is widespread, it must have been adaptive, but what was selected for is a generalized trait that both encourages reproductive fitness and stimulates sympathetic behavior.  That trait, or adaptive mechanism, is attachment or affiliative behavior" (44; emphasis original).

We are naturally more sympathetic to those to whom we are most similar.  Humans naturally think of themselves first in terms of a small group (a nuclear family, an extended kinship, a local community, religious group), but we can imagine ourselves as part of a larger sphere and, with extra effort, behave sympathetically toward those who differ from us in race, religion, and culture.  Earlier, Prof. Wilson makes the keen insight that "life-styles" today is the nonjudgmental word for what used to be called "character," and I might broaden that to say "culture" (7).  This is a point that illumines the linguistic shift which has occurred in morality and permissible moral discourse, on the one hand, and that, on the other, contemporizes the tendency toward small group affiliation, toward those who live life as we do.

Two towering moral philosophers, both Scotsmen, in their own way identified sympathy as either the source of moral sentiments (Adam Smith) or at least as one of the two extremely powerful and basic sources along with utility (David Hume).  Both men viewed moral philosophy as inextricably linked to the study of human nature.  The place of sympathy in the thought of other philosophers could be mentioned, but the central place of it in Smith's and Hume's writings should prompt us to reflect more than we typically do -- or I have done -- on what it is, how it is manifested, and how it might be cultivated.

Sympathy can lead to benevolent feelings and actions, Mr. Wilson notes, but we should not limit sympathy to the rosier side of life:

Sympathy is often expressed by phrases that convey not tenderness or concern, but anger and vengeance.  If we see an abominable act -- say a man laughing while torturing an innocent baby -- our first reaction is not likely to be an expression of sympathy for the child but rage at its tormenter; and this will be true even if it is not our child.  Sympathy is often wrongly portrayed as entirely a tender sentiment:  sympathetic people are sometimes described as soft, warm, or weepy.  They often are; but they are much more than that, and some of the most sympathetic people have no trace of cuddliness in their temperament.  Even so staunch a utilitarian as John Stuart Mill recognized this:  "It is natural to resent and to repel or to retaliate any harm done or attempted against ourselves or against those with whom we sympathize." (40)

If we do not limit sympathy to the soft and warm side of life, then we should perhaps also be prepared to view anger and vengeance as legitimate moral responses that stem from not just a sense of justice but also of sympathy.

In this way, we may also have stumbled upon an important observation:  moral senses such as sympathy and justice are connected.  We may not be able to say (yet) with someone like Adam Smith that sympathy is the primary cause of moral sensibility.  But we recognize that there is interplay between the moral senses.

Moreover, if there is any truth to the commonplace that men and women are different (a truism to which some do in fact object), and if on the whole it is the case that women naturally display the tender and sensitive side of sympathy more than do men, then men would do well to remind themselves that such sympathy may be a manifestation of moral sense.  And it may be a commendable moral expression just as much as the stereotypical male tendency to display the more violent and vengeful side of sympathy.

If they are so tempted, men, in other words, should not diminish women's proclivity to soft sympathy.  Women, likewise, should not diminish men's proclivity to hard sympathy.  Both may be appropriate, admirable actions stemming from a developed moral sense.  If morality is valued, then the various expressions of the moral senses should also be valued.

To be sure, members of each sex can and often do display the moral trait that I have associated as more typical of the other.  The point is not gender stereotypes per se but better mutual appreciation among the sexes.  Professor Wilson's discussion of sympathy, which recognizes its pluriformity, provides men and women enhanced grounds for doing what they already know that they ought to do:  live patiently in an understanding way with one another.  Sympathy has come full circle.

Two separate spheres of life?

Why does a blog ostensibly about "cultivating wisdom, prudence, and virtue" comment on and provide links to articles about political-legal topics such as termination of human life or Congress' powers to regulate it?

This is a fair question worth pondering.  Two recent sets of posts relate to these topics.

The question, it seems to me, probably reflects a critical assumption:  morals, morality, and moral evaluations -- those things tethered to virtue of mind and action -- have very little, if anything, to do with politics and law.

The reasoning behind such an assumption might go like this:  "If those two things, morals and politics, did have something to do with one another, then I could understand why you might mention them in this forum.  But I'm not really sure that they do go together.  Isn't morality just a private matter while politics is public?  Aren't these two separate spheres of life?  That's how I tend to think about it.  So I need some help understanding why you've raised those topics here, when you want to promote right practical thinking and action that are in accordance with virtue."  We might respond by posing a question of our own.

Are morals really separate from politics?

This is a well-traveled moral and political philosophical question.  It arises, for instance, in classical Greek thinking.  One encounters the matter in the dialogues of Plato and the writings of Aristotle.  It evolves in their successors, the Cynics, the Stoics, and the Epicureans.  I touched on it in my inaugural post.

Another way to frame this question is to ask:  Do morals and morality transcend social structures, or are morals and morality determined by them?  Is doing right (morality) distinct from faring well (socio-political pursuits in community)?  This matter is not only well pedigreed in classical philosophy; it is also a matter that tangibly affects daily life today -- including the propriety of content in blog posts such as this one.

It is a mistake, I submit, to divorce questions of morals from questions of politics.

It is erroneous, in other words, to separate decisively considerations of virtue in individuals from considerations of society's governing policies that form the communal environment in which these individuals find moral pursuits a matter of daily experience.  To separate them so, at least, is to reconfigure radically social community.

In a previous post, I noted that some people explain political differences in terms of different conceptions about the structure and function of the family:  the morality that informs approaches to the family gets mapped onto the government as family.  The guiding moral framework of the microcosm (the family) becomes the guiding moral framework for the macrocosm (the political state).  People tend to see the government as family, and they wish for those principles operative in the one sphere to prevail in the other.  This is just one theory (that of George Lakoff in Moral Politics), and it is not perfect.  It does, however, posit one vivid way in which morality and politics are connected:  the role and moral principles of the family understood subsequently as those of the government.

Morals and politics may be connected not only from the perspective of cognitive linguistics but also from the perspective of philosophical reasoning.

In his A Short History of Ethics, Alasdair MacIntyre makes this observation while discussing the supposition that "there are two distinct spheres of life, one for 'morals,' the other for 'politics.'"

But, in fact, every set of moral evaluations involves either neutrality toward or assent to or dissent from the social and political structure within which it is made.  And insofar as dissent is concerned, the moral evaluation will involve some degree of commitment to an alternative.  (MacIntyre, Short History, 97)

This connection between the two was the case for Plato and Aristotle, the Notre Dame professor argues, because they assume that the proper role or duty of an individual is inextricably intertwined with that individual's role and duty in the polis.  That is, these philosophical giants take for granted their particular social structure in deriving norms for practical guidance in pursuit of virtue. Therefore, the "Greek moral vocabulary is not so framed that the objects of our desires and our moral aims are necessarily independent.  To do well and to fare well are found together in a word like eudaimōn" (85).  And they are found together, moreover, in the daily context, the rough and tumble world, in which they both occur.

Additional reflection on Prof. MacIntyre's larger treatment of Greek ethics could help to shed light on multiple angles of this topic, particularly how morality neither completely transcends social settings nor is wholly subsumed by them.  To explore his treatment, however, would take us far afield.  The point I find most germane now is the moral evaluation that necessarily takes place in one's disposition toward a certain social and political structure.  We might simplify this structure and call it policy.  Professor MacIntyre identifies assent, dissent, and neutrality.

I am not always entirely sure whether neutrality in the strict sense, without a slight preference for one policy or the other, is in fact possible.  Even if it were, the person displaying neutrality would still be involved in a moral evaluation based on some sensibility, and that person would still be assuming a commitment to an alternative, a third thing, something either not on offer or not yet proposed.  Neutrality in this sense would also be dissent from the social and political structure (or policy), a lack of assent to this but desirous of "something else."

My concern is not indifference or neutrality per se; rather, it is that approval of, disapproval of, or even neutrality toward a particular socio-political structure involves a moral evaluation of it.  The one socio-political structure or policy is approved or disapproved because it is judged to be right, or just, or not.  If one is neutral, one is either unsure whether it is just (itself a part of moral reasoning) or has a framework in which what is right is judged to be based on different criteria (because, from an alternate moral sensibility, the policy is not clearly right or wrong as other partisans suppose).

Therefore, it does seem that morals are connected to politics; the two are not separate from each other.  To say this is not to identify them; they are distinct but not separate.  It is just to affirm that politics have an inextricable moral dimension, and our moral sensibility is what causes us to think and feel the way we do about politics.  Our moral sense, to use the phrase that is the title of James Q. Wilson’s valuable book, is what prompts our assent to, dissent from, or neutrality toward a governing policy or regime.  We are involved in judging whether we think it is right.

What is the payoff of these reflections?  This point is important to make because there is a tendency with some currency to divorce moral questions from political ones.  This proclivity may be subsiding somewhat.  The oft-rehearsed appeal to "social justice" explicitly introduces moral questions into political discussions.  But we need to realize that differences on questions that may relate to "social justice," on the one hand, are not necessarily a matter of one side's being moral and the other's being immoral, the one just and the other unjust.  It is, on the other hand, actually to underline that the political topic is a moral one and that the disagreement is about the nature of justice, precisely the moral principle in question.

Second, this is, in fact, to bridge the two things that sometimes are divorced, the norms of virtues like justice and the social and political structures in which the norms find expression.  It is to recognize the uniting thread of doing right and faring well, morality and politics.

It is, third, to admit that discussion about policy measures that we might characterize as questions of "social justice" may involve us in discussions about more basic questions of morals, morality, and moral evaluation.  We may have to back all the way up to comprehensive moral frameworks.  We must be prepared for those more difficult soundings in our conversations with one another.  We cannot raise the political matter and shy away from discussions of the moral matter.  More to the point, in raising a political topic we implicitly welcome moral questions.  We cannot cry foul if we are pressed to explain ourselves and our guiding moral convictions and assumptions.  This may be the only way to make real political progress in such conversations.

Finally, we must also train ourselves to engage in these discussions both respectfully and thoughtfully.  Not only in ancient Greece but also in our own day, to probe the moral questions that lie underneath surface questions of politics is what responsible individuals do, as a key component of their role, in social community.  This sort of communal self-understanding and sense of responsibility is something that we would do well to reclaim.

The Dark Knight (of Taxing) Rises

In an effort at once to sympathize with those who find themselves in the minority and to recognize respectable reasoning through a topic when it arises, I reproduce in full today's rather lengthy editorial in The Wall Street Journal.

A Vast New Taxing Power

The Chief Justice's ObamaCare ruling is far from the check on Congress of right-left myth.

The commentary on John Roberts's solo walk into the Affordable Care Act wilderness is converging on a common theme: The Chief Justice is a genius. All of a sudden he is a chessmaster, a statesman, a Burkean minimalist, a battle-loser but war-winner, a Daniel Webster for our times.

Now that we've had more time to take in Chief Justice Roberts's reasoning, we have a better summary: politician. In fact, his 5-4 ruling validating the constitutional arguments against purchase mandates and 5-4 ruling endorsing them as taxes is far more dangerous, and far more political, even than it first appeared last week.

This is a minority view. By right-left acclaim, at least among elites, the Chief Justice has engineered a Marbury v. Madison-like verdict that camouflages new limits on federal power as a reprieve for President Obama's entitlement legacy and in a stroke enhanced the Supreme Court's reputation—and his own. This purported "long game" appeals to conservatives who can console themselves with a moral victory, while the liberals who like to assail the Chief Justice as a radical foe of democracy can continue their tantrum.

It's an elegant theory whose only flaw is that it is repudiated by Chief Justice Roberts's own language and logic. His gambit substitutes one unconstitutional expansion of government power for another and rearranges the constitutional architecture of the U.S. political system.

***

His first error is the act of rewriting the plain text of a law, instead of practicing the disinterested interpretation that is the task of the judiciary, regardless of the partisan outcome. The second error is converting the health insurance mandate's penalty into a tax. Ninety years of precedents have honed precise and widely divergent legal meanings for taxes and penalties for violating laws or regulations, and they are not interchangeable.

The Chief Justice did not simply change a label—as if Congress said something was a penalty when it was really a tax. Rather, these categories are defined by their purposes and effects, by how they operate in practice. Taxes are "exactions" whose main goal is raising revenue, while penalties punish individuals for breaking the law. The boundaries can blur—legitimate taxes may also have strong punitive aims—but scarcely so in this case. ObamaCare's mandate was designed to regulate individual conduct to help achieve universal coverage. If it succeeds perfectly, it should collect $0.

Even if Democrats had passed the mandate tax as rewritten by the Chief Justice, and they did not, the Supreme Court until Thursday has never held that Congress can call anything it wants a tax. The taxing power like the Commerce Clause is broad, and the courts are generally deferential. But all powers the Constitution enumerates are also limited, and these limits—unique to each power—must be meaningful and enforceable by the legal system.

The Chief Justice's compounding errors deprive the taxing power of any viable limiting principles. Article I, section 8 gives Congress an independent grant of power to "lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." Taxes must originate in the House, the political body designed to be most responsive to voters. There are also important additional safeguards on the type of exactions known as "direct taxes."

Indirect taxes—"duties, imposts and excises"—are taxes on activities and products. They are passed on by a seller, triggered by a transaction and more or less optional: Consumers don't have to buy taxed goods and services. Direct taxes, on the other hand, are those that the federal government is empowered to impose on individuals as citizens. They cannot be avoided because they are levied on the existence of people.

America has its origins in a rebellion against arbitrary and pernicious taxation and the Framers wanted to make it extremely difficult to impose or raise direct taxes. These can easily morph into plenary police powers, the regulation of private behavior and conduct that the Constitution vests in the states. For this reason, while the taxing power in addition to raising revenue can achieve regulatory results, those regulatory results must be constitutional themselves.

***

That boundary held for 225 years until Thursday's ruling, as the Court had repeatedly struck down Congress's efforts to arrogate to itself police powers under either the Commerce Clause or the taxing power. The Chief Justice ruled instead that the mandate was an unconstitutional exercise of federal police powers under the Commerce Clause, only to transform the taxing power into a license for the federal government to impose taxes whose defining feature is commanding people as members of society.

Chief Justice Roberts concedes that "Congress's ability to use its taxing power to influence conduct is not without limits" and that in the 19th and early 20th centuries the Supreme Court "policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority." But then he writes that "more recently we have declined to closely examine the regulatory motive or effect of revenue-raising measures."

His error—or more likely, his deliberate sleight-of-hand—is that this modern jurisprudence does not deal with direct taxes but indirect taxes and income taxes. Income taxes were authorized in 1913 by the Sixteenth Amendment, which was necessary to bypass the other important limit on direct taxes, called apportionment.

The Constitution says that "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken." Colloquially, direct taxes are known as head taxes and they must be spread among the states according to population. Apportionment's onerous limits were meant to protect against abuse and sectional favoritism. If Congress uses direct taxes, the residents of South Carolina will pay the same overall share as Massachusetts, and so forth.

But apportionment would defeat the mandate tax's "whole point," the Chief Justice writes, since every state will have a different percentage of citizens that are uninsured. So he cryptically rules that "A tax on going without health insurance does not fall within any recognized category of direct tax."

But if not a direct tax, then what kind of tax is it? It is not an indirect tax because it applies to a failure to purchase something, what the Chief Justice calls "an omission," not an optional transaction. It is not a tax on income because that merely hits "accessions to wealth," not what people choose or choose not to do with those accessions.

The result is that Chief Justice Roberts has created the only tax in U.S. history that exceeds its own constitutional limits and is meant to execute powers that the Court otherwise ruled were invalid. His discovery erases the limiting principle—apportionment—that constrains the taxing power for everything besides income and excises.

In the process, Chief Justice Roberts has hollowed out dual federal-state sovereignty and eviscerated the very limit on the Commerce Clause that he posits elsewhere in his opinion and that has some conservatives singing his praises. From now on, Congress can simply regulate interstate commerce by imposing "taxes" whenever someone does or does not do something contrary to its desires.

The Chief Justice seems to understand this, so he tries to articulate his own new limiting principle for the tax power. His mandate tax isn't a mandate but merely a suggestion: choose to buy insurance or "pay money into the Federal Treasury, no more," an act he likens to a tax on gasoline. He also temporizes that "taxes that seek to influence conduct are nothing new."

True enough, but the punishments in the tax code for inactivity come in the form of not being able to claim benefits that Congress in its graces bestows. Such as: If you don't borrow to buy a home, you don't get a mortgage interest deduction.

Congress has never passed a tax on a lack of gasoline or a tax on a failure to buy gasoline, any more than Congress can regulate inactivity under the Commerce Clause by telling people to buy gasoline or else pay a penalty. The reality is that Washington would love to regulate the ordinary economic choices that used to be beyond its purview, and now it will be able to abuse the ad hoc "tax" permit that the Chief Justice has given it.

***

The John-Roberts-as-Daniel-Webster school argues that the long-term limits on the Commerce Clause and other aspects of the ruling are a good trade for the loss of upholding ObamaCare, and government excess has now reached its high-water mark and will recede over time. That false hope seems unlikely given the subversion of the taxing power and unleashing a general federal police power. This is equally harmful to liberty and dual sovereignty.

One possible saving grace is that this center-right country remains suspicious of taxation, and therefore the Chief Justice increases accountability somewhat through truth-in-labeling. But note how Democrats are already claiming that the ObamaCare mandate is not really the tax that is the only reason it was upheld.

White House chief of staff Jack Lew said Sunday that "The law is clear. It's called a penalty." Neither sentence is true. On Friday, the Obama re-election "truth team" was even less subtle in a memo titled "They're lying about ObamaCare" that made the same claim. Chief Justice Roberts has created a creature that is not a tax for political purposes but is a tax for constitutional purposes.

Chief Justice Roberts's ruling is careless about these bedrock tax questions, and they are barely addressed by either the Court's liberal or conservative wings. His ruling, with its multiple contradictions and inconsistencies, reads if it were written by someone affronted by the government's core constitutional claims but who wanted to uphold the law anyway to avoid political blowback and thus found a pretext for doing so in the taxing power.

If this understanding is correct, then Chief Justice Roberts behaved like a politician, which is more corrosive to the rule of law and the Court's legitimacy than any abuse it would have taken from a ruling that President Obama disliked. The irony is that the Chief Justice's cheering section is praising his political skills, not his reasoning. Judges are not supposed to invent political compromises.

"It is not our job," the Chief Justice writes, "to protect the people from the consequences of their political choices." But the Court's most important role is to protect liberty when the political branches exceed the Constitution's bounds, not to bless their excesses in the interests of political or personal expediency or both. On one of the most consequential cases he will ever hear, Chief Justice Roberts failed this most basic responsibility.

A version of this article appeared July 2, 2012, on page A10 in the U.S. edition of The Wall Street Journal, with the headline: A Vast New Taxing Power.

Reminders

Big picture reminders are sometimes necessary.  For instance:

• what is legal is not always just;
• what is permitted is not always prudent; and
• what is required is not always right.

A tad more than a $6,300 fine

This article in today's The New York Times about a Chinese woman's pregnancy and the government's decision to execute her child touches on some topics I raised in previous posts this month (first here and then here).

Enduring Classical Benefits

In a recent post, I drew attention to a political and ethical tension:  the government's position in the United States to permit gendercide (or female foeticide), which is legal, and the ostensible position of the United States government with respect to other countries regarding the same permitted termination of life, which the Secretary of State has said should be prohibited.

Shortly after making that blog entry, I ran across the following discussion of ethical matters in ancient Greece.  It has to do with the development of moral theory and practice from Homeric myth to fifth-century Athens.  In his A Short History of Ethics, Alasdair MacIntyre discusses the tug of war between nomos (law, custom, convention) and physis (nature), the order of society and the order of the universe, as it relates to one's understanding of virtue and moral expressions within cultures and across them.  I take it that this tug of war is parallel to the tension in the U.S. domestic approach to gendercide through selective abortion and its foreign approach to the same question.

I mention Prof. MacIntyre's discussion for another reason.  It is often asked, Of what benefit or enduring significance are the humanities and especially the study of classics?  One answer might be that such study helps us to understand ourselves, our institutions, and our moral theory and practice -- and to make informed judgments about them -- in ways that we might not do without classical knowledge and some reflection.

I offer the following, then, as evidence of the enduring benefits of a classical education.  The tension in the U.S. is not new.  The Athenians, too, were conflicted.  Who knew, right, that an account of the development of moral reasoning in ancient Greece could be, well, just so relevant to contemporary discussions?  It is.  What, then, might we learn about justice from their experience and moral investigations that can help to improve ours?

Between Homer and writers five centuries later there is a great change in Greek myths about the order of the universe.  The Homeric myth does reflect, though with much distortion, the workings of an actual society in which a close form of functional organization is presupposed by the moral and evaluative forms of appraisal which are in use.  The later assertions of order in the universe reflect not a structure that is, but one that was, or one that is struggling to survive.  They are conservative protests against the disintegration of the older forms and the transition to the city-state.  The myths themselves cannot but open up the question of the difference between the order of the universe and the order of society.  But above all, this question is sharpened by a widening awareness of radically different social orders.

         The impact of the Persian invasions, of colonization, of increase in trade and therefore in travel, all these brings home the fact of different cultures.  The result is that the distinction between what holds good in Egypt but not in Persia, or in Athens but not in Megara, on the one hand, and what is the case universally as part of the order of things becomes overwhelmingly important.  The question asked about any moral rule or social practice is, Is it part of the essentially local realm of nomos (convention, custom) or of the essentially universal realm of physis (nature)?  Linked to this is of course the question, Is it open to me to choose what rules I shall make my own or what restraints I shall observe (as it may be open to me to choose which city I shall live in and what therefore shall be the nomos by which I live)? or does the nature of the universe set limits upon what I may legitimately choose?  (MacIntyre, Short History, 10-11)

… Different cities observe different customs and different laws.  Does and should justice differ from city to city?  Does justice hold only within a given community between citizens? or should it hold also between cities?  The Athenians condemn the character of Alcibiades because he did not observe the restraints of dikaiosune in his behavior within the Athenian state.  But their own envoys behave just like Alcibiades in their attitude toward other states.  That is, they equate what is morally permissible with what the agent has the power to do. (MacIntyre, Short History, 11-12)