Nozick on the source of moral constraints

Bagnoli, Nozick on the source of moral constraints Notizie di Politeia 2014, draft 9.9.2014 Symposium Robert Nozick Nozick on the source of moral constraints Carla Bagnoli The political argument of Anarchy, State and Utopia is based on two fundamental Kantian claims, that is, that persons have moral value and that all persons are alike from the moral standpoint. According to Nozick, the persons are separate and have distinctive intrinsic value, which is the source of moral constrains which limit rather severely what we can do to one another, as individuals and as institutions. This is the background for the “the side constraint view”. This view establishes that it is forbidden to violate moral constraints in the pursuit of one’s goals but also for the sake of normative ideals, such as equality.1 Interestingly, then, the claim about moral equality does not immediately justify equality as a result of re-distribution. In fact, it prohibits at least unqualified redistributive policies as morally forbidden. Nozick writes: “The moral side constraints upon what we do […] reflect the fact of our separate existences. They reflect the fact that no moral balancing can take place among us; there is no moral outweighing of one of our lives by others so as to lead to a greater overall social good. There is no justified sacrifice of some of us for others”.2 For Nozick these moral constrains lead to “libertarian side constraint that prohibits aggression against another”, and represent the grounding of his critique of Rawls’ principles of justice.3 The debates concerning ASU have focused almost exclusively on the implications of this claim for justice and for the legitimacy of the state and of coercive institutions, as specified particularly in Chapter 3 of ASU. What Nozick calls the root idea is that “there are different individuals with separate lives and so no one 1 Nozick 1974: 29. 2 Nozick 1974: 33. 3 Nozick 1974: 33. 1 Bagnoli, Nozick on the source of moral constraints Notizie di Politeia 2014, draft 9.9.2014 maybe sacrificed for others” 4. The role and justification of the crucial claim about the moral status of persons remained peripheral in such debates, but the topic deserves attention. Its investigation is instructive especially in the attempt to locate correctly Nozick disagreement with Rawls. To this I would like to reconsider his underlying assumption that persons are sources of legitimate constraints on moral and political deliberation because they have a distinctive moral status. This tenet is parallel to Rawls’ thesis that persons are legitimate sources of valid claims.5 Clearly, Rawls and Nozick draw diverging normative consequences from the claim that moral agency constrains political deliberation. In what follows, however, I am interested in bringing to light some differences concerning the distinctive justification afforded for the claim about moral status as a source of moral constraints. It appears that there are striking similarities even concerning the justification of moral constraints. Nozick shares the Kantian view that persons are separate, and also that their distinctive value should be accounted for in terms of self-reflexivity.6 In fact, Nozick holds that Kant’s insight about the connection between ethics and reflexivity represents a major advantage from the explanatory point of view. By linking ethics to reflexivity, Kantians are capable of explaining the reason why ethical judgments are “practical” in the distinctive sense that they are appealing to the agent in the first-person perspective. Nozick shows to be a perceptive reader of Kant in underlying this aspect of the Kantian account of practical knowledge, and it is noteworthy that this is an aspect of the Kantian account that eludes current debates in meta-ethics. Typically, such debates are grounded on the Humean assumption that the practical significance of ethics and ethical judgments has to do with desires and their psychological pressure. Instead, Nozick shares the Kantian view that practical significance is recognized only in the first person perspective insofar as it calls into play the authority of the agent. In fact, Nozick was ahead of Kantian constructivism in identifying constructivism 4 Nozick 1974: 33. 5 Rawls, 1980: 543. 6 This thesis appears prominently in Korsgaard’s defense of constructivism about reasons, see Korsgaard 1996: 160-161. 2 Bagnoli, Nozick on the source of moral constraints Notizie di Politeia 2014, draft 9.9.2014 (under the name of “Kantian structuring”) as a distinctive meta-ethical theory whose promise is to be measured against competing meta-ethical theories and, in particular, of theories of practical reason. The merit of Kantian constructivism in this respect is that it makes sense of the first-personal appeal to ethics, that is, to its practical significance. As he writes: “It is not surprising that ethical principles ineliminably contain reflexive indexical terms… Reflexive indexicality is the benchmark of ethics”.7 Nozick was also ahead of current critics of constructivism in identifying its basic weaknesses. In Rawls’ account of Kantian constructivism as a moral theory, this claim about the moral status of persons is part of the “basis of construction” and it is not in itself constructed. That this claim is not itself justified constructively is supposed to be the soft spot of constructivism. Critics of constructivism target the presence of unconstructed elements, which enter the procedure as the “materials of construction”, which makes it incomplete or dependent on realist foundations.8 Nozick anticipates a powerful objection of this sort. The distinctive way in which Nozick formulates the objection is particularly perceptive and uncovers the deeper grounds for his commitment to freedom and moral equality. My purpose is to review this objection in the attempt to locate the disagreement between Nozick’s and the constructivist justification of the claim about the moral status of persons. In a neglected passage of Philosophical Explanations, Robert Nozick discusses “Kantian structuring”, which roughly corresponds to the meta/ethical sort of Kantian constructivism: the view that “we structure the world so that the statements come out true”. As an account of practical knowledge, this view purports to explain why ethics binds us in the first person. While this is a significant explanatory advantage of the theory, Nozick doubts that any such “Kantian structuring” can adequately explain morality. First, it is unclear how structural claims about rational agency may lead to a full-fledged moral theory and deliver moral duties. The objection is indeterminacy. Second, such a moral theory grounds the legitimacy of moral claims on features of one’s self rather than on the recognition of others: “The moral law somehow stems from my rational nature 7 Nozick 1981: 548. 8 I have reviewed some of these canonical objections in Bagnoli 2014a. 3 Bagnoli, Nozick on the source of moral constraints Notizie di Politeia 2014, draft 9.9.2014 and makes a claim upon me.”9 It seems that the Kantian theory misplace the source of moral value and does not pay sufficient attention to the crucial role of others: “Those theories that explain all of the content of ethics as an outpouring or side effect of the agent’s seeking value diminish the independent force of the moral pull. The moral pull marks the fact that the other person is entitled to moral behavior from us – he is not merely the fortunate windfall recipient of behavior from us in the course of our own pursuit of value”.10 And third, such a theory fails to ground objective practical knowledge because it does not warrant that we are tracking genuine values. The objection is subjectivism. These are all important objections, which meta-ethical constructivists have taken seriously. They are not fatal to Rawls’ political constructivism, but they certainly represent a major threat against the feasibility of constructivism as a meta-ethical theory of normativity. As an account of normativity, the defining feature of Kantian constructivism is the claim that practical knowledge is knowledge by principles.11 Its task is to establish a constitutive relation between knowledge of oneself as a practical subject and knowledge about what one ought to do. Thus understood, Kantian constructivism is antagonist to non-cognitivist theories, denying that moral judgments have cognitive contents, because they deny that there is something to be known. But it is also rival to cognitivist theories such as normative realism or robust realism because they hold that knowledge can be practical “in itself”. The proceduralist form of constructivism such as the one proposed by C.M. Korsgaard is particularly vulnerable to the objection of subjectivism, because of the appeal to the role of particular practical identities. But it is also vulnerable to Nozick’s criticism different sorts of constructivism that highlight the role of moral sensibility, such as the form of practical cognitivism, which I have defended. In this cognitivist version of constructivism, respect plays a constitutive role insofar as it makes us subjectively aware of our autonomy, 9 Nozick 1981: 551. 10 Nozick 1981: 528. 11 I have developed this account in Bagnoli 2013a, 2013b, also 2014a and 2014b. 4 Bagnoli, Nozick on the source of moral constraints Notizie di Politeia 2014, draft 9.9.2014 and this emotional experience lends authority to the moral law.12 Reliance on respect and moral sensibility seems problematic for a theory that purports to be objectivist. What if the sentiment of autonomy is illusory? Where is the proof that our consciousness is not confabulating and concocting stories that relate to nothing real? It is unclear how this sort of constructivism warrants what Nozick calls the subject’s alignment with reality. Furthermore, as Nozick phrases the criteria of objectivity is seems as though the alignment of the subject with reality is possible only via some sort of grounding, that is, a form of justification that is in tension with constructivism. It seems to me questions about alignment arise because there is an expectation that the argument works in a realist fashion, promising an evidential relation between appearances (the subjective feeling of respect) and reality (the objectivity of the moral law). But this expectation is misplaced, if the constructivist is right. In other words, the constructivist must resist this dialectical move as question begging in favor of realism. One promising way out of this debate is to specify that the role of respect in the argument of the fact of reason is cognitive and epistemic but not evidential as the realist assumes. It does not promise a way to access a further reality or a method for deepening our understanding of anything external. It remains at the level of the agent’s own moral consciousness. There is no risk of failing to establish reality beyond appearances, because the constructivist argument does not intend to move beyond the level of reflective consciousness. This restraint may seem equally dangerous, since it bounds philosophical argumentation to the level of reflective consciousness, which may be deceptive. Constructivism does not hold or imply that practical subjects are infallible and immune to error. The point is that were these failures to occur they are not simply motivational or epistemic in the narrow sense of the term. When the rational agents fail to be guided by their own reasons, they fail the standards of rational agency and do not have full authority over their action. While pervasive, these failures are instances of temporary loss of rational agency. They are not all of the same gravity and they may not have a lasting effect, but this is what they are. This is the most interesting difference between the realist and the constructivist argument from moral 12 Bagnoli 2014b. 5 Bagnoli, Nozick on the source of moral constraints Notizie di Politeia 2014, draft 9.9.2014 experience. Those who share Nozick’s doubts may rebut that the constructivist affords a too weak conception of moral experience. In fact, appeal to moral experience is widely considered the principal argument in favor of realism. The realist takes moral experience to have independent ontological purport and thus attributes to it an evidential role. On this view, our subjective moral experience picks out something “in the world” –that is, specifically moral properties or moral facts. In general, arguments from moral experience and introspection are used to produce answers to this ontological question. However, it is far from clear that realist argument is more promising and leads to a stronger view of objectivity. First of all, the realist argument from experience cannot definitively prove that moral claims are ontologically objective. It may establish only a pro tanto ontological relation between how things appear to us and how they stand independently of us. By contrast, the constructivist argument of the fact of reason tells us that the moral experience of respect is constitutive of reflective agency. The role of subjective moral experience is epistemic but not evidential. The feeling of respect is the subjective condition upon which we can take ourselves to be agents. This is no proof that we ever actually succeed in this exercise of selfgovernment, but this mode of self-representation is an invulnerable condition upon which we take ourselves to be agents. To this extent, constructivism does not produce pro tanto but conclusive reasons in support of objectivity. The objection might be that the constructivist interpretation of the fact of reason amounts to transposing objectivity from the transcendental to the psychological level. But my point is that for practical reason to be objective its demand must be binding in the first person (or the practical use of reason is found lacking, hence practical reason proved unreal). The moral phenomenon of respect shows that we are sensitive and responsive to the demands of morality. Thus, in appealing to respect and emphasizing the cognitivist role of moral sensibility, constructivism does not merely downshift from the transcendental level to the psychological level. Rather, it proposes a complex model of objectivity where the requisite criteria of rationality are congruent with the sensibility of the agents to whom they apply, e.g. rational and finite agents. My reply is that the claim of ethical objectivity does not make sense without reference to some subjective aspects of rational agency. As Nozick often remarks, ethics is designed for subjects endowed with sensibility 6 Bagnoli, Nozick on the source of moral constraints Notizie di Politeia 2014, draft 9.9.2014 and rationality. In raising doubts about the constructivist project, Nozick is also concerned with the foundation of moral obligations. By arguing about the subjective awareness of the moral law, rather than in terms of its reality, the constructivist may appear to forgo the ambitious project of founding morality on the categorical principle of practical reason. In particular, the objection is that the constructivist argument makes the content of moral principles conditional on human sensibility. Despite the role acknowledged to respect, this cognitivist version of constructivism does not make the contents of practical principles conditional on our sensibility. The rational validity of practical principles is established independently, through their conformity to practical law. (Only principles that have the form of the law are rationally valid and have underivative and unrestrained authority). What does depend on our moral sensibility, instead, is the authority that such practical principles have on us. Insofar as the role of moral sensibility is cognitive – even though not evidential – the sort of constructivism I advocate is not merely coherentist. In its practical use, reason is vindicated by the congruence with our experience of the constraining and motivating effects on our sensibility. But this does not undermine objectivity in any significant way. Rather, it accounts for the reason why obligations bind us in the first person. However, Nozick is right that to acknowledge the epistemic role of moral sensibility affects the shape of constructivism and its argumentative strategies. There is an internal relation between practical reason and moral obligation, but there is no proof that it is logically contradictory or incoherent to be immoral. More modestly, this constructivist argument establishes that lack of susceptibility to the authority of moral obligations is conceivable but incompatible with the peculiar conditions of our sensibility. I take it this to be sufficient to counter the most serious challenges against the morality and vindicate a sensible rationalism, which does not attempt to show the compelling force of reason to convert the immoralist on pain of logical incoherence. Its task is to establish that the representation of ourselves as practical subjects plays a direct role in action and its rational justification of action. References 7 Bagnoli, Nozick on the source of moral constraints Notizie di Politeia 2014, draft 9.9.2014 Bagnoli, C. 2013a. Constructivism about Practical Knowledge. In Bagnoli ed. Constructivism in Ethics, Cambridge: Cambridge University Press, 153-182. Bagnoli, C. 2013b. Il ruolo epistemico delle norme costitutive. In Bagnoli ed. Che fare? Nuove prospettive sull’azione. Roma: Carocci, 129-152. Bagnoli, C. 2014a. Starting Points: Kantian Constructivism Reassessed. Ratio Juris, (2014) 27 (3): 311-329. Bagnoli, C. 2014b. Moral Objectivity: a Kantian Illusion? The Journal of Value Inquiry, forthcoming, (DOI: 10.1007/s10790-014-9448-7) Korsgaard, C.M. 1996. The Sources of Normativity, Cambridge University Press. Nozick, R. 1974. Anarchy, State and Utopia, New York: Basic Books. Nozick, R. 1981. Philosophical Explanations. Boston: Belknap Press of Harvard University Press. Rawls, J. 1980. Kantian Constructivism in Moral Theory. Journal_of Philosophy,77, pp.515-72. 8