Theory of conduct

Many ethicists behave as though the theory of conduct is more important than the theory of value, although there is disagreement about this point. Here are some of the outlines of some of the major views.

The theory of value looks at what things are valuable. So suppose we have fixed upon some theory of value; given that we have decided that certain things are intrinsically good, or more valuable than other things that are intrinsically good, given all that, the next big question is what it implies about how we should live our lives.

The theory of conduct is "the study of right and wrong, of obligation and permissions, of duty, of what is above and beyond the call of duty, and of what is so wrong as to be evil." But we may, I think, simplify matters considerably. It's not like we have to take up each of these concepts in turn, the concepts of "right," "wrong," "obligation," "permission," "virtue," "vice," and so forth. I think that if we focus in on just one of these concepts, we will be able to define the others in terms of it. For example, say we define "right action." Then we can define "wrong action" as "action that is not right." In fact, we could spend a good lot of time trying to explain what the relations are between these terms. For example, we might ask: If an action is right, then am I obligated to do it? Or how about this: If I ought to do something, then would I be practicing a virtue if I did it?

We obviously don't have time to consider all those questions. You are just going to have to take my word for it that, once we come up with a good theory of one of these concepts, that will allow us to make sense of the other of these concepts.

Typically, the one concept that ethicists focus on is "ought." So the task of the theory of conduct, as they typically see it, is the task of giving an account, or a definition, of "ought." Or in other words, the task is to fill in the blank in the following:

One ought to take action A iff ...

I ought to help a stranger on the roadside if, and only if -- well, what? Let's start with a popular, seemingly very sensible rule, the Golden Rule. You know that Golden Rule: Treat others in a way that you would like to be treated yourself. The Golden Rule can be restated like this:

One ought to treat others in a certain way iff you would like to be treated that way yourself.

So, sure. Help the stranger on the roadside -- and why? Because that's how you would like to be treated yourself, if you found yourself stranded. That makes some sense. But unfortunately, as you have no doubt come to expect, the first or most common view of things is not always the best. As useful as the Golden Rule may be, it's not perfect.

First of all, the Golden Rule only applies to actions that we take with respect to other people. It only advises us on how to treat others. What it doesn't tell us is how behave when we're at home, alone, and not interacting with others at all. It doesn't tell us that we should do our homework on time, or that we should get to bed at an early hour, or anything like that. And surely a theory of conduct has to apply to individual conduct, and not just social conduct. Certainly, when we formulate a theory of what we ought to do, we want that theory to tell us how to lead our personal lives, not just how to treat others.

Here you might have an objection. You might say: wait a second, what I do with my own life, on my own time, when it isn't hurting anyone else, is my own business. So it's not a matter for ethics. If you think that way, then here's my answer to you: You're wrong, and not just a little bit wrong, but really wrong! Consider the implications of what you're saying: you're saying that if some action doesn't affect other people, then morality has absolutely nothing to say about your action. So then consider some actions that morality would have nothing to say about. It would have nothing to say about smoking (as long as you did not breathe your smoke in other people's air); it would have nothing to do with heavy drinking (as long as you didn't let your drinking affect your job performance and so forth); morality would have nothing to say about whether you ought to do your homework, about whether you should get a good education, whether you should try to keep yourself healthy, and so forth. But surely morality does have a lot to say about those matters, about matters concerning how you should conduct your own personal life.

Now notice that I'm not saying you're not free to do whatever you like. In this country, that's pretty obvious. You're politically free to do all sorts of corrupt things, in this country, at present. And to be honest, I personally wouldn't advocate denying you those freedoms. But the question here is whether morality might have anything to do with leading your personal life in a virtuous or a corrupt way, so long as it does not directly affect other people. It seems to me pretty obvious that it does. In fact, I would submit to you that this is one of the most important things that a theory of conduct can do for us -- it can provide us with wisdom about how we should live all aspects of our lives, personal and social.

Anyway, since the Golden Rule doesn't address how we should live our personal lives, it isn't a complete theory of conduct. But there are other problems with it as well. A second problem is that, after all, other people may not want to be treated the way that you'd like to be treated. For example, I might be a masochist -- I get a great deal of pleasure from certain kinds of pain. So do unto others as I'd have them do unto me, right? Tie them up and hurt them, I guess! That's how I, the masochist, want to be treated! Well, that example might be a little flippant, and unfair to defenders of the Golden Rule, but there are plenty of other examples where that came from.

Varieties of consequentialism

Let's give the Golden Rule a rest and see what other theories of conduct are out there. Probably the most common general type of theory is consequentialism. Consequentialism is best looked on as a whole category of theories, not as a particular theory itself. It says:

One ought to take action A iff A maximizes the amount of good.

So consequentialism sees a really close connection between theories of goodness and theories of conduct. Once you decide what is good, the consequentialist knows what to do: make the most of that good thing. That's essentially what we ought to do, according to the consequentialist: we ought to see to it that there is as much good as possible.

But as we saw before, obviously, there are different theories about what things are good. Accordingly, there are different kinds of consequentialism. Let me compare two leading versions, egoism and utilitarianism:

Egoism. One ought to take action A iff A maximizes the likelihood of one's own pleasure, happiness, or eudaimonia.

Utilitarianism. One ought to take action A iff A maximizes the likelihood of the pleasure, happiness, or eudaimonia of as many people as possible (including oneself).

With some thought, you should be able to see that egoism basically presupposes that some variety of values individualism is true; utilitarianism, on the other hand, presupposes that some variety of values collectivism is true. That means, in other words, that egoist says that the only intrinsic good, or the most important intrinsic good for a person, is that person's own eudaimonia. And that each of us ought to do whatever we must in order to pursue our own eudaimonia. On the other hand, the utilitarian says that the only intrinsic good, or the most important intrinsic good, is the well-being of society in general. And hence that we all ought to do whatever we must to ensure the well-being of society in general.

One important thing to notice is that sometimes, when we help ourselves, we help others. So sometimes egoism and utilitarianism will sometimes recommend the same actions. For example, if you go to medical school and become a doctor who saves many lives, while making yourself rich, you both help yourself and help others. That is, of course, the best sort of scenario. It would be wonderful if life were always like that -- if, by helping yourself, you always helped others, and by helping others, you always helped yourself. Some people would say that that's indeed the case -- but most people do not.

But there are some utilitarians who are rather extreme, in that they say that the good of society far outweighs your own individual good. I suppose Jesus would be an example of someone with this view. Jesus said that we ought to be ready to sell all our worldly possessions to help the poor. Even if you think that's too extreme, you might still say to Dr. So-and-so: Dr. So-and-so, you should live in a very modest house, and use no more than, say, $30,000 per year to live on, and you should give all of the rest of your money to charity. And the reason you should do this is that a flourishing society is much more important than a flourishing individual. Your own flourishing is thus totally subservient to the good of society. It has been argued recently by Shelly Kagan that you are indeed morally obligated to do just this sort of thing -- to make your life totally subservient to the service of others. The moral requirements of utilitarianism on individuals, they say, are very serious indeed.

The egoist, of course, disagrees that we have any such obligations. According to egoism, what matters most, for each individual, is that individual's own flourishing. Perhaps the good of society is also important. But for any given individual, you or me, a flourishing society is not more important, not more intrinsically desirable, than it is for each of us to flourish. It's easier and less potentially paradoxical to put this in first-person terms, so let me put it that way. For me, what is most worthwhile is my own flourishing; and this is more important than the flourishing of society. As an egoist I might observe that I am not personally responsible for the survival or the quality of life that other people have; so if I am rich when the rest of society is poor, there is not any sort of moral problem there. Why? Because my eudaimonia is not to be sacrificed to that of society at large. My eudaimonia is most important to me; and I expect other people to feel the same way about themselves. And so it's not like I ought each year to give all but $30,000 of my salary to charity. Indeed, what I ought to do is whatever will make my own life flourish; if this includes giving some money to some charities, then so be it. That entirely depends on whether some amount of charitability is required for my own flourishing. Maybe it does -- maybe it doesn't. Something like this was the view of the very controversial Russian-American novelist and philosopher, Ayn Rand. It is also the implicit view of many of the ancient Greeks, especially Aristotle.

You might be asking yourself: Isn't there some middle ground between the two extremes of egoism and utilitarianism, or between extreme selfishness and extreme self-sacrifice? Why do we have to say that individual lives must be sacrificed to the good of society -- or, on the other hand, that the good of society may be totally ignored in favor of one's own good? Surely some sort of hybrid theory is possible. This point is not often made in introducto'ry discussions of these issues, but it's important, so I think its a point that should be made.

So here's how we might formulate a hybrid theory:

Hybrid consequentialism. One ought to take action A iff A maximizes the likelihood of one's eudaimonia unless there is another action, that is not much more costly to oneself but nonetheless maximizes the eudaimonia of other people.

The problem with hybrid consequentialism, as I have formulated it here, is that it is so darned unclear. I mean, say you have the choice between buying a new car, which maximizes the likelihood of your eudaimonia, and buying a slightly used car, and using the money you saved to contribute to the United Way. That (one hopes) would help maximize the eudaimonia of other people. How would hybrid consequentialism help you make that decision? Would a used car be "much more costly" to you?

Obviously, this is a matter that requires some thought. And you might very well observe that this is just the sort of struggle that some people in modern American society do go through. They don't have any clear idea about how strongly their actions should be influenced by their own interests versus the interests of society at large. When it comes to purely financial matters, some religions recommend that you tithe 15%. But obviously, that's only one relatively small part of the problem of balancing your own interests against those of society -- or just of your family, for that matter. We could re-formulate the hybrid theory in all sorts of ways.

But the big question in any case is: How do we decide which of these theories is correct? Of course, some (maybe most) people have made up their minds already. Some very traditional, strict Christians recommend that you be like Jesus, and that you take utilitarianism to an extreme: that you ought, and indeed are morally obligated to, center your entire life around the service to others. On the other hand, there followers of Ayn Rand, and others as well, who regard such behavior as offensively self-sacrificial, and who regard their main obligations as being to themselves and their immediate families -- what they think they ought to do is to develop their good habits, their talents, and their fortunes as much as possible. And of course, the vast majority of people in this country, these days, fall somewhere between the two extremes.

How to decide on a theory of conduct

So suppose that you don't know what to think about the issue -- or suppose that you have an opinion on this question, but you admit that you have not rationally justified your opinion. Then how could you rationally justify any choice at all? What sort of arguments could you offer in favor of utilitarianism, or egoism, or some version of the hybrid theory? That's a very hard question.

I'll tell you about one strategy that some moral theorist have come up with. It's called the method of reflective equilibrium. The name is fancy, but a bare-bones version of the method itself can be explained in a fairly simple way. It goes like this. List off a bunch of different moral dilemmas and particular moral decisions to be made. Decide what you think about each of them. In situation #1, you decide to do A, in situation #2, you decide to do B, and so forth. Then when you've looked at enough situations (I guess it would have to be a lot, but I don't know how many), you look at different candidate theories of conduct: egoism, utilitarianism, and the hybrid theory. (And remember, those are only kinds of consequentialism. We still have to consider other theories of conduct, which we will do next time; the method of equilibrium is supposed to work in considering those other theories as well.) So as you look at these different candidate theories of conduct, the question you have to ask yourself is: Which of these theories best fits the way I have decided those moral dilemmas and questions?

Suppose you pick the hybrid theory. It seems to fit best with your decisions about all those different moral cases; you don't think you should be totally selfless or totally selfish. But suppose you think the hybrid theory as I've stated it doesn't fit your decisions perfectly or clearly. So you tweak the theory here and there. You add qualifications, explanations, and so forth, until the theory clearly fits your opinions about the cases. Then you say: that's the correct theory. Why? Because it fits my opinions about lots of different moral cases. When you get to that point, you are in a state of reflective equilibrium. Keep in mind that this is a bit of a simplification, but that's the basic idea behind the method of reflective equilibrium.

So that's one way to decide which of these different moral theories is correct: you pose a bunch of moral cases to decide on, then you decide on them, then you pick a theory of conduct that fits your decisions best, and then you adjust your theory of conduct until the fit is perfect. When the fit is perfect, you are in "reflective equilibrium."

But here's a problem with that method. What if you don't know what to decide about particular cases? What if you can't make up your mind? What if the whole reason you want a theory of conduct is so that you can make up your mind? You tell yourself, "Gee, if only I accepted a theory of conduct. Then I'd be convinced I knew what the right thing to do was! But I don't know what to do, since I don't have a theory." I doubt many people actually think this way; but I am certain that quite a few thoughtful people do think this way. And they're really stuck, in a practical way. They've got a serious practical problem. I mean, if you don't know what to think about particular moral dilemmas, and you don't have any convictions about any moral principles that would help you get out of those dilemmas, then where do you start? If you have no opinions about particular cases or about generalizations, how could you make any progress toward firm conviction?

If you ask me, this is one basic philosophical dilemma of the modern age. A lot of people lose their traditional religion and do not do any philosophy to make up for the total values vacuum that creates. And the result, I think, is that a lot of people run around as moral relativists. It seems like no one could have objectively correct answers to questions about the theory of conduct. Why does it seem that way, to some people? For the reasons I was just explaining: some people have no definite opinions about particular moral cases or about moral generalizations. As a result, they think that anything goes, my opinion's just as good as yours, and so forth. Indeed, some people are explicitly taught in school that moral questions are (somehow) purely a matter of arbitrary personal decision.

Well, I will try not to leave you in the lurch here. But all I can do is give you some fairly vague indication of how you might go about deciding what to believe, in the theory of conduct. This could be regarded as a more sophisticated brand of the method of reflective equilibrium.

Here's how the method would go. I don't care who you are, you have some moral convictions. There isn't anybody out there who has no moral convictions. So begin with those moral convictions of which you feel most certain; and actually list them out. They can be convictions about particular cases, invented or real, or they can be generalizations. Surely you already believe, very firmly, a number of generalizations about what you ought and ought not to do. For example, I would be in utter shock if you did not hold, very firmly, that you ought not to kill other people for kicks, or for any frivolous reasons. I'm sure all of you believe that. You, or most of you, probably also believe that stealing, cheating, and lying are wrong (or at least that they require very good reasons).

So the idea is to begin with a number of particular cases that you do have strong convictions, and a number of generalizations that you think are about right. And then look at them all together, and see what sort of broader generalizations can be drawn from them, if any. You might conclude, for example, that you should never do anything that ultimately contributes to the undermining of the basic trust that strangers in society can have of each other. That is an example of a relatively high-level principle. And the hope is that, when you have accumulated enough high-level principles like this, you will eventually come to a point where you can say, definitively, that egoism, or utilitarianism, or hybrid consequentialism, or some other theory yet, is the broadest correct theory of conduct.

I'm not pretending that this method is perfect. For one thing, what if it just turns out that Joseph Stalin and I happen to disagree about what high-level principles about conduct are correct? How could we, in a reasoned way, resolve the disagreement? Perhaps we couldn't. But as far as I know, this is about the best that we can do.

What we're going to do next is to consider one high-level principle that almost all of us, if not all of us, would accept: namely, that we have certain inalienable rights, and that certain things would be totally unjust for us to do. Then we are going to evaluate the different kinds of consequentialism to see whether they can take account of these high-level principles about rights and justice. And we will look at another kind of theory of conduct, deontological theories of conduct, and see how they do on that score. This will take us into one of the core issues in both ethics and political philosophy: What are rights and what is the justification for thinking that we have them? And then: What is the role of government in ensuring that we keep these rights?

The problem of justice

Today we're going to talk about a topic that is discussed both in ethics and in political philosophy: justice. In particular, we're going to talk about the moral foundations of justice. In other words, we're going to ask: How can we morally justify claims that we have rights, or that we deserve to be treated justly? I mean, obviously we do have rights, and obviously we do deserve to be treated justly. The philosophical question isn't whether, it's why. If you will, why do we have rights? Why do we deserve to be treated justly?

That's the topic we're aiming at. Before we get there, we have to go back to what we were talking about before, namely consequentialism.

We have looked at different varieties of consequentialism, and we wound up asking: How can we choose between these different theories? On what grounds would we argue that one is correct? Then we looked at the method of reflective equilibrium, and another variant on that same method, as ways to arrive at a theory of conduct. Now here is one thing that we concluded: a theory of conduct should "square with," should rule the same as, the way you strongly feel about particular cases. If some theory of conduct says that you ought to take action A, when your strong, pre-theoretic opinion is that you definitely should not take action A, then that's a good reason to throw the theory out. Let's put it this way. If some theory of conduct you're looking at says that you should do something that you feel quite sure you shouldn't do, then that's a reason to throw out that theory, and look for a new theory.

Another thing we said is that we all have some very strong convictions about certain generalizations about morality. Maybe they aren't the broadest possible generalizations, but they are nonetheless generalizations: they apply to many different cases, not just one case. For example, here is a principle that I think almost everyone here would say is correct: we should not punish people for crimes when we know those people to be innocent. It is always wrong to punish people for things we know they haven't done. Why? Well, that would be unjust, and a blatant violation of their rights. Definitely we all think that it is right to practice justice -- that as a society we ought to see to it that justice is done and that rights are protected.

That's the sort of "very strong conviction about a generalization" that I am talking about. And the point is: a theory of conduct has to be consistent with those generalizations. If a theory of conduct would say that we ought to punish someone who is innocent, well then, we can throw out that theory of conduct; why? Because we very well know that it is wrong to punish the innocent. You can think of this as an extension of the method of common sense I introduced when we discussed epistemology. It's certainly a principle, a generalization, of common sense that we should not punish the innocent. And just as we said then, talking about the method of common sense, if some sophisticated piece of philosophy comes along and says something that is clearly a principle of common sense, then we can just throw out that sophisticated piece of philosophy.

All right, that's all by way of setting the stage for a major problem for consequentialism -- for all different kinds of consequentialism, meaning egoism, utilitarianism, and the hybrid theory. Namely, the problem of justice. In short, the problem of justice is the problem that consequentialist theories of conduct seem to recommend that we do unjust things. Consequentialism seems to say that we ought to do some things that are just clearly unjust, and that clearly violate the rights of the innocent. If that's the case, then consequentialism must be wrong.

OK, so let me explain two cases where it seems like consequentialism would recommend that we behave unjustly. Let's begin with a case that one of the professors here at Ohio State gives. Suppose the young daughter of a prominent family in a small town is abducted in broad daylight, raped, and murdered. The murderer is totally unknown; the police are absolutely baffled and have no leads at all. Everyone is upset and distraught. And even worse, people are losing respect for the law; the crime rate is going up, with the imminent threats of more rapes and murders by local gang members, because everyone thinks that the town police are letting people get away with murder. So the chief of police decides that something has to be done about this. He arranges for a tramp off the midnight freight train into town to be caught, planted with evidence, and charged. That's what they do; the jury is rigged, and the tramp is declared the murderer. So the tramp is carted off to death row. Meanwhile, things get back to normal in the town. Respect for the law is restored.

I think we can all agree that this is a terrible miscarriage of justice. That tramp should not have been tried and convicted of the crime; he did nothing to deserve that, and if he did nothing to deserve it, it was obviously unjust. But he was; and look at what it accomplished. It prevented the commission of more rapes and murders, and brought a sense of safety to the entire town. Meanwhile, only one man's life was ruined. If he had not been unjustly convicted, and no one found any other scapegoat, probably more people would have died. So on the whole, more good was done, it appears, by making the tramp a scapegoat.

Well, if more good was done -- more people were made happy, more lives were saved -- then the sheriff did what he should have done, according to consequentialism anyway. The amount of goodness, both for the sheriff personally and for all of society, was maximized; so the sheriff did what he ought to have done. Are you convinced?

Well surely that's not right! It was wrong for the sheriff to have set up that man. He ought not to have done that. So it looks like consequentialism recommends something that is wrong.

Here's a second example, somewhat along the same lines. Suppose you're helping out at the local hospital and there has been a major disaster nearby -- an airplane crashed, say. Organ donations are desperately needed for four people, or they'll all surely die. Without the transplants, all four are going to die. But organ donations have been extremely scarce. Doctors need a heart, a lung, a kidney, and a liver. So they see you, young healthy Ohio State student, with a healthy heart, lung, kidney, and liver. They get to thinking to themselves: "We can kill the student, remove the organs, and save four people. Those four people from the plane crash were just unlucky to be on that plane. It wasn't any fault of their own. So either four people can die and the Ohio State student lives; or the Ohio State student lives, and the four people all die. Well, that's a no-brainer. Kill the student!" So they kill you furtively (saying that you had an accident), remove your organs, save four people, and indeed, the amount of goodness in the world is maximized. Not for you, of course, but for world as a whole. Instead of four people dying, only one person died. If killing you maximizes the amount of good in the world, then by gosh the doctors should kill you!

But of course the doctors shouldn't kill you. That is clearly wrong. Even if we can't say exactly why it was wrong -- beyond saying that it was unjust, and that your right to life had been violated -- nonetheless, however we explain it, it definitely seems wrong. But the consequentialist observes that the amount of good in the world was maximized; so the doctors did what they ought to have done.

So there you have it. There are cases where it appears that the amount of goodness in the world would be maximized by an action, but that action is clearly morally wrong. And yet consequentialism says we should take that action. So what follows? That we should reject consequentialism.

This seems to be a really difficult problem. The consequentialist might try to get out of the problem, though. There are basically two ways of doing it. The first is to say that the actions in both of these cases -- making the tramp a scapegoat, and killing you to harvest your organs -- is not wrong at all, but perfectly right. Call this "biting the bullet." If you bite the bullet, and say that clearly unjust actions are right, then you're basically throwing justice out the window. You're saying that justice is less important than maximizing the amount of happiness in the world. If a happiness-maximizing action is unjust, so much the worse for justice.

Well, I think that just can't be the correct way to think about this. Why on earth do we care so much about justice anyway? At the very least you should explore that question before you just kick justice out into the cold.

So the consequentialist has another way to face the problem of justice. The second option is see if there is some way to explain, using the theoretical resources of consequentialism, why it is that we ought to do the just thing. The consequentialist thinks that we ought to maximize goodness. Perhaps there is some way to show that doing the just thing, always respecting others? rights, maximizes goodness. In the long run, if everyone always does what is just, that maximizes the amount of happiness in the world.

Now, do you think that's true? Wouldn't that be an incredibly convenient, very nice thing if it were true? I mean, it would be great if, by everyone doing what is just, and respecting others? rights at all times, we did as a matter of fact create a world that had the greatest amount of happiness. But honestly, can you say that you know that would be the result? I mean, isn't it totally possible that, but always being just, and always respecting peoples? rights, you were prevented from doing some things that would, in the end, make the people who were left in the world happier? It seems to me it would actually be lucky, and somewhat surprising, if, by always doing what is just, we wound up with the world that is just as good as it possibly can be.

There are always going to be opportunities to make lots of people happy at the expense of a few hapless souls. And if that's the case, it looks like the consequentialist is committed to depriving those hapless souls of their rights, for the sake of the common good.

Now, there is another version of consequentialism, called rule consequentialism, which we will talk about later. Perhaps that other version can overcome the problem of justice. But I don't see how the version we've considered so far, which is called act consequentialism, can overcome the problem. It looks like the consequentialist is stuck with having to violate peoples? rights. And then it looks like we will have to reject consequentialism, unless we want to say that it's OK to violate peoples? rights.

Deontological theories of conduct

So let's look next at some theories of conduct which can and do advocate respect for rights. I mean deontological theories of conduct. Here is a definition:

A theory is a deontological theory of conduct iff it says that what we ought to do is governed by rules stating what our duties are, regardless of the consequences of our actions are.

So, for example, the reason that we should not lie is that there is rule, very vaguely stated as, "Do not lie." And this rule gives us a duty not to lie; and even if telling the truth has awful consequences, that's just too bad. Sometimes telling the truth, and doing your duty, hurts. That's life. So says the deontologist.

Now, as a deontologist, you don't have be entirely naïve. You don't have to say, for example, that you should never lie, ever. Maybe your rule would be more complicated than that. I mean, if the stormtroopers are knocking on your door, and you're harboring some enemy of a totalitarian government, are you going to rat on the refugees? No; definitely not. So you might change the rule that you follow to something like this: "Do not lie, except to those who would use the truth to do great evils." And surely there are exceptions to this rule, too. So you'd have to go to work, I suppose, coming up with a set of rules, or laws, that govern behavior. And your rules would probably be fairly complicated. That's not surprising though; just think about how you live your life, and what you learn. You can think of wisdom in the art of living as a sort of tacit understanding of all the little complications that need to be added to the rules of right living.

Now, unfortunately, we aren't going to be able to go into deontological theories of conduct in any detail. If we did, we would try to come to grips with Kant's moral theory; Kant is a very famous, very influential German philosopher of the late 18th century, and his theory of the best examples of the deontological theory out there. He had one catch-all rule, the Categorical Imperative, from which we were supposed to be able to derive all the other rules that we'd need to have in order to know what we ought to do. You can find more about this in the reading from Hospers. We can't get into that.

What I want to focus on is what the deontological theory can say about rights and justice. The basic idea should be pretty clear. Since what we ought to do depends on following certain rules, that state our duties, then there is bound to be a rule to the effect that we should not convict and sentence people we know to be innocent. That is what makes it wrong to make the tramp a scapegoat. And that rule also is, in part, what the deontologist would say gives us a right to due process. And the fact that that right is violated is what makes the sheriff's act unjust.

There is also bound to be a rule to the effect that we should not kill people except in self-defense and in the legitimate administration of justice. That is what makes it wrong for the doctors to kill you. That rule is also what gives you the right to life. And it's because you have that right, that it is unjust for the doctors to kill you.

I think you probably get the general idea, but let me try to state it clearly. There are certain rules that state how we ought to treat each other. Some of those rules give us rights. And the violation of those rights is what we call injustice. Accordingly, the condition of justice is the condition in which one's rights are not violated. So as you can see, it looks pretty straightforward just how the deontological theory tries to justify our claims to having rights, and that justice must prevail.

I don't know about you, but I think there's something kind of fishy going on here. The deontologist just seems to have made the whole task of defending rights way too easy. Well, you want a right? We'll give you a right -- just make up a rule! You might reply, "We can't just make up any old rules, and say that we have just any old rights." And I agree, we can't. So, out of the gazillions of rules that are conceivable, how do we decide which rules are the ones that we ought to follow?

Let's get an example on the table, and I think you'll be able to see the problem more easily. Suppose we want to say, "Do not kill others except in self-defense and as part of the legitimate administration of justice." The deontologist says that that's the rule that gives us a right to life. And the rule looks pretty much correct, I think. But why is it correct? What if someone disagreed with us: how could we convince him, or her, that it is correct? See here, we're doing philosophy and in philosophy, we require arguments for our views. So if, in formulating the deontological theory of conduct, we wind stating a rule, then by god, we'd better be prepared to give an argument that we should all follow that rule. It's very fine and well to lay down the law. You can do that without giving arguments, if you're a parent giving rules to your children. But you can't do that if you're a philosopher trying to convince other philosophers of something. It might sound impressive to declare something a "rule" or a "moral law," but just putting the name "rule" on it doesn't make it automatically correct.

It turns out that this is actually an uncomfortable problem for deontologists. It's one thing they don't like to be pressed on too hard. So let's look briefly at a few of the sorts of arguments that deontologists give to support these rules of conduct.

One way is Kant's way, as I was saying before. He thought that we could derive individual rule from one overarching rule, the Categorical Imperative. The Categorical Imperative reads: "So act that you could wish the maxim of your action to become a universal law of human conduct." I'm not going to discuss this and I don't expect you understand it, unless you've done the reading. For our purposes, suffice it to say that the Categorical Imperative just doesn't allow any easy, straightforward way to derive particular rules. It doesn't perform as advertized. For more on that, please see the reading.

A second way that deontologists try to support individual rules is by saying that we know they are true by some sort of moral intuition, or moral sense. You should remember this from our discussion of meta-ethics; we said then that there are some people who think that goodness is a non-natural property, which we can detect through this faculty of moral intuition. We're just presented with a situation, like the scapegoat situation, and we can just understand that some things are good and others are bad; and we just know, by this faculty of intuition, that certain actions are right and others are wrong.

Before criticizing this second way, let's look at a third way, which is very similar to it. So this third way that deontologists try to support individual rules is by saying that they are part of a larger system of natural law. Halverson in our readings for today presents this sort of view. The basic idea is this. There is a huge system of rules, or laws, which we might discover, that regulate how we should treat each other; and these rules we call a sysem of "natural law." Among the rules would be the aforementioned rule, "Do not kill others except in self-defense and as part of the legitimate administration of justice." Another rule would be: "Do not deprive others of their property except through due process of law." So you put all such rules together, and you have a system of obligations and permissions which gives us our rights, and which states what justice is.

Now, there's an obvious criticism to be made both of the moral intuition defense of rules of conduct, and of the natural law defense. And the criticism is actually just to ask the same question over again, that we started with. Namely, how do you know that these rules are correct? You can say that you have some "moral intuition" that they're correct. That's not an argument, though. And similarly, you can say that some rule is part of an enormous body of natural law. But again, that's not an argument either! Honestly, how do you know that a given rule is part of natural law? That's the whole problem, an enormous problem, and it looks like moral intuitionism, and the natural law theory, by themselves, just want to sidestep the problem.

And this problem for the natural law theory isn't just a theoretical problem -- it's also serious practical problem. Let me explain. I want to call your attention to something in our reading from Halverson, on p. 161 of the packet. Halverson used to be an Ohio State professor, believe it or not. I quote: "Many laws that are in force in most of the civilized nations of the world can be justified only by an appeal to natural law. Consider, for example, the practice of homosexuality. It cannot be reasonably argued that homosexual acts between consenting adults are in any way harmful to the community. It therefore is not necessary for the community to protect itself by prohibiting such acts. Yet such acts are commonly prohibited by law. [Remember, this is an older textbook.] On what grounds? On the grounds that such acts are wrong, immoral, contrary to the consciences of most men perceive as being good and right [notice the reference to something like the moral sense theory here] -- contrary, that is, to natural law."

So there you have it. Homosexuality is wrong, and immoral. On what grounds? That it's to natural law. Well are you convinced? Is that enough of an argument for you? Well of course not. This is just ridiculous. To say that something is "contrary to natural law" appears to be no more than to say, "It's against my current beliefs, even if they happen to be little more than mere prejudices."

I hope it's beginning to be clear to you why I say it's a practical problem, that natural law theorists do not say why moral rules are part of natural law. It's a practical problem because natural law theorists can, if they want to, just declare that some practices that they don't approve of, like homosexuality, are against "natural law." And then they can and have passed actual laws restricting such activity, which laws they try to justify by saying it's against this bogus "natural law."

So to summarize. The deontological theory of conduct tries to give a justification for rights. How? By saying that our rights are given by certain moral rules, like "Don't murder," and "Don't steal." But then we have to ask: How do we know that we ought to follow those rules? Or more simply: How do we know that those rules are correct? The moral intuitionist says that we intuit that they are correct; the natural law theorist says that the rules are part of natural law. But neither of these claims really answers the question at all. Or to put it differently, I could, for all they've said, claim that the following rule is correct: "Murder and steal when it's convenient to do so." And I've got a right to murder and steal. Why do I say that? I simply intuit it. Or I claim: "That's a matter of natural law. It's part of natural law that I should murder and steal when it's convenient for me to do so!"

But what about Kant's theory, which we never got around to stating in any depth? Now all that I said about it was: "The Categorical Imperative just doesn't allow any easy, straightforward way to derive particular rules. It doesn't perform as advertized." If you're at all interested in defending a deontological theory of conduct, you certainly shouldn't take my word for it. You should actually study what Kant has to say; you'd do that if you took a class in ethical theory. Again, we don't have time for it.

What we do have time for, though, is a more general argument against all deontological theories of conduct. This general argument is from a consequentialist point of view. Let me summarize this argument in advance, as follows. One simply cannot adequately justify most, if not all, rules of conduct without reference to the consequences, the results, of following the rules. Deontology -- deontological theories of conduct -- says that whether we ought to take an action does not depend on the consequences of the action; it depends only on whether the action follows a correct moral rule. That's all that matters, not the consequences. But if, in order to justify the rule, we have to have reference to the consequences of following the rule, then deontology is wrong. Because ultimately then, whether we ought to take an action does depend on the consequences of the action -- or at least, it depends on consequences of following the rule of your action. All right, I don't expect you to get this argument on the first pass, so let's go over it more carefully.

The most important premise here is the first one. Here it is again: One cannot adequately justify most, if not all, rules of conduct without reference to the consequences, the results, of following the rules. In other words, my claim is that you have to talk about the consequences of following rules in order to justify the rules. That doesn't mean that the consequences are the only things that justify the rules; but it does mean that you can't ignore the consequences of following rules, if you want to justify them. Now, why do I say that?

Well, just take any rule of conduct at all, that you think is correct. Such as: "Do not murder." According to the deontologist, we could justify such a rule without talking about the consequences of murdering people. But if you think about it, that's an amazing claim. How on earth could they establish that we ought not to murder, without talking about the consequences of murder? I mean, just look at what murder does accomplish: it ends human life; it brings terrible grief and other hardship to the family and friends of the murder victim; and it contributes the breakdown of trust that would otherwise exist among well-meaning, honest strangers in our society. Now, the deontologist appears to claim that we could somehow show, or account for, the wrongness of murder without talking about all those terrible things that murder accomplishes. That's surely just impossible. I mean, suppose that murder did not cause grief, hardship, or any sort of breakdown in trust between people. And all it did was end a human life -- not unlike squashing an ant, I guess. I don't know if you can imagine killing a human being as being like that. But if you can imagine that, then ask yourself: would murder be regarded with as much horror as it is now? Clearly not. Clearly the reason that murder is regarded as the great evil that it is, is at least in part due to the fact that murder can wreak such devastation on human society. When we talk about an action's causing devastation in human society, we're talking about the consequences of the action.

So the point is, in order to state what the actual justifications that our actual moral rules have, we have to look at the consequences of following, and not following, the rules. Suppose you wants to reply to this, as follows. "Well OK. So consequences are necessary to consider when we justify moral rules. It's just that they are only one consideration among others. There are other reasons why we have the duties we do, other reasons besides the bad consequences of not doing our duty."

Now, if you want to say that, then it seems to me you're talking about a version of deontological ethics that is so watered-down that it really can't be called a version of deontological ethics at all. Really what it is, is another hybrid theory, but in this case, instead of combining egoism and utilitarianism, to get some middle-ground version of consequentialism, you're combining consequentialism and deontological ethics. And with this new hybrid theory, you're saying: What makes a moral rule correct isn't just the consequences of following the rule -- there's more to it than that -- but the justification for the rule does include some reference to consequences.

Now, if this is what you think, then I've got a challenge for you. What else is there to consider whenever you want to justify a rule of conduct, besides the consequences that following, or adopting, the rule ultimately has? Is there anything else we could use to justify a rule? Besides consequences, ultimately?

I'm not going to pretend that there's nothing else. One thing that ethicists have pointed out is that good motives do, sometimes, make actions right or wrong. If I do the right thing for the wrong reason, I've done something wrong. Without getting into that at any length, let me just say what the obvious question is going to be: What, after all, makes a good motive good? If I have a nice intention, to treat you fairly, then what makes that intention nice? I suppose that you will have to talk about the typical consequences of my nice intention.

Let me remind you where we are. We are just winding up our criticism of deontological theories of conduct. The criticism I just gave is this: that the deontologist has to talk about the consequences of following rules, in order to justify the claim that we ought to follow the rules. And it's not at all clear what else, ultimately, could be used to justify a rule besides its consequences. Now this leads directly into the next, and final, theory of conduct, which is called rule consequentialism.

Rule consequentialism

As I mentioned before -- I don't expect you to recall this, but it's good if you do -- distinguish rule consequentialism from act consequentialism. What's the difference? Let me present definitions of both terms and then you'll be able to see it more easily:

Act consequentialism is the view that whether we ought to take individual acts depends on the (good or bad) consequences of those acts.

Rule consequentialism is the view that (1) whether we ought to take individual acts depends on whether the acts follows a correct set of moral rules; and (2) whether a given rule is correct or not depends on the (good or bad) consequences of everyone adopting the rule.

So act consequentialism says we should judge individual acts as right or wrong, based on their consequences. Rule consequentialism, by contrast, says that we should adopt rules based on the consequences of adopting the rules; and then we use the rules we've adopted to determine whether we should take given actions or not. More briefly: act consequentialism says to judge acts based on their consequences; rule consequentialism says to judge rules based on their consequences.

So rule consequentialism is an interesting sort of hybrid between act consequentialism and deontological theories. Like act consequentialism, it says that actions are ultimately to be judged based on consequences; and like deontological theories, it says that individual acts are to be judged based on whether they follow rules that state our moral duties. So you might say that it combines some good features of both types of moral theory we've looked at so far.

Now remember our topic for today is justice, and we are looking at these moral theories in order to see whether they can give us a way to solve the problem of justice. How can we morally justify claims that we have rights, or that we deserve to be treated justly? So let's see how the rule consequentialist might try to deal with the problem of justice. How can the rule consequentialist justify the claim that we have a right to life, for example?

Well, recall a rule we stated before: Do not kill others except in self-defense and as part of the legitimate administration of justice. The rule consequentialist could say that we should adopt that rule, and the fact that rule is correct is what gives us a right to life. Because really, that's what it means to say that I have a right to life: namely, that if someone kills me, except in self-defense or after due process of law, then this rule against such killing has been violated, and my killer has done something gravely morally wrong. It's the fact that that rule is in place that gives me a right to life; and part of justice is, of course, to respect that right that I have.

Now so far, I haven't said anything that the deontologist hasn't already said. And remember our question for the deontologist: why should adopt rules like this? Of course, that same has to be asked now; if we don't answer that question, then we haven't solved the problem of justice.

Rule consequentialism says that whether a rule like the one that we just stated is correct or not depends on the good or bad consequences of adopting the rule. So then we consider: on the whole, would it be better, would there be more goodness in the world, if we adopted this rule against needless killing? Sure! If everyone recognized this rule, if everyone agreed that it was wrong to kill needlessly, then the world would be a much nicer place indeed, than it would be if no one or only some people adopted the rule. So that's how we justify the rules that give us rights, and that establish justice: we say that adopting those rules is greatly beneficial to us all.

Well then, why not adopt the following rule too? -- "Make scapegoats out of tramps when convenient and when it can be covered up well enough." Adopting that rule very definitely would violate the rights of tramps. We don't want to do that. But if everyone did adopt that rule, wouldn't that make life for everyone (well, everyone except the tramps) better? If adopting that rule would make life for everyone better, then rule consequentialism would say: adopt the rule! And then we'd have the rule consequentialist saying that it's OK, it's even morally obligatory, to violate the rights of tramps! We even have a rule saying that we ought to do so!

Now I think that the rule consequentialist can defend himself here. I am partial to rule consequentialism myself, so I will step in and defend the theory against this criticism. Here's how I propose to do it. Clearly, I have to have some argument that adopting the rule that says to make scapegoats out of tramps would make life actually worse for everyone. I'd have to have some way to argue that adopting that rule would have lots of dangerous consequences.

If you ask me, that doesn't seem like too tall of an order. It just requires a little common-sense understanding of human nature, and what is likely to happen if people actually do adopt that rule. Life, basically, becomes cheap to all the non-tramps. If we ordinary folks go around thinking that the official word is that unloading our problems onto tramps is OK, that's going to make us behave bad toward other people, besides tramps. After all, if tramps are dispensible, then why not the mentally ill? Why not people of very low intelligence? And if we start treating those people as dispensible, then why not people that we have deep political disagreements with? Or deep religious disagreements? Why not people who are simply critical of us? You see where I'm going with this. If a rule like the rule that says it's OK to make scapegoats out of tramps is adopted, then given what we know about human nature, that has all sorts of consequences for other rules that people will, in fact, decide to adopt. If one rule that we adopt makes life cheap, then why should we expect people to stop there?

I think you can look at totalitarian Communist regimes, such as those of Lenin and Stalin, as excellent examples of the consequences of this. They adopt one rule, that it is all right to revoke the rights of capitalists and dissenters; and consequently, all sorts of rights, of all sorts of people, were regularly and institutionally infringed in Soviet Russia.

This is why some people very strenuously insist that our rights, or at least some rights, are absolute and government must not be allowed to infringe them at all. Let me try to pick a non-partisan example -- actually that's kind of hard, but what about the right to free speech on the Internet? Remember when Congress passed, and the President signed, a law that actually tried to restrict our ability to cuss online. To hell with that, I say! I'll cuss online all I want; government should try to restrict that! But look, the reason that people feel strongly about this isn't that they think it's really important that they be able to cuss online. It's not that by itself which makes opposition to such measures important. What makes it important is that, to put it bluntly, give them an inch and they'll take a mile. And I don't just mean the government. I mean people in general. If people, such as the American people, come to accept that the government ought to restrict free speech in one place, then they've in fact adopted a certain rule of conduct (for government, in this case). And the point is that that can have, and historically has had, all sorts of bad consequences for what else will seem permissible to the people for the government to do.

But here I'm just picking on the government. The exact same point can be validly made about other areas of life. Indeed, it can be made about rules of moral conduct that apply to individuals at home, not interacting with other people at all. For example, suppose you adopt a rule: Do your homework before you watch television. (You might have seen a comic strip about this in the Dispatch the other day.) But then you consider another rule: Do your homework before you watch television, unless "Friends" is on. You reason to yourself, as a good egoist: "My happiness would be maximized if I followed this rule. Not only would my homework get done, but I'd get to see my favorite TV show, and doing that wouldn't keep me from getting my homework. I mean after all, it's only a half-hour program." But if you reason to yourself this way, you're failing to take something important into consideration. Namely, what is the effect of your changing your rule, and allow the exception, in fact, going to be? In fact, what happens with all but the most disciplined people is that they end up allowing more and more exceptions, until they have basically gotten rid of their rule entirely.

And in my opinion, if you'll allow me to ascend my soapbox, that's exactly the direction that society has gone in. We do, perhaps, evaluate our moral rules according to their consequences; but what we fail to take account of is the consequences of making our moral rules lax, in particular, the consequences for the other rules that we adopt. This is how a breakdown in morals, in an individual, and a breakdown in respect for rights and justice, in a society, occurs. You try to justify an exception to a perfectly useful, reasonable rule; and the exception itself seems perfectly useful and reasonable; but allowing for the exception has the result of undermining your ability to resist making further exceptions. And at the bottom of this slippery slope is the muck of immorality and injustice.

So let's get back to the point. I presented rule consequentialism and then I asked: How can rule consequentialism justify those rules which give us our rights? How does it solve the problem of justice? The immediate reply is to say: individual rules are justified by to the fact that they maximize the amount of goodness in the world. But then there's the challenge: Why can't we adopt rules that say that we ought to do unjust things, like making scapegoats out of tramps? Why doesn't that maximize goodness? Now what I just got done giving you, from atop my soapbox, is an explanation for why making scapegoats out of tramps doesn't maximize goodness. Why not? Again, it's because when we make exceptions to our the general rules that state our rights, given our experience with human nature, we know that we've started down a slippery slope, and the ultimate results are that respect for rights in general is undermined. And a low respect for rights in general has way worse consequences than disallowing our sheriffs to make scapegoats out of tramps.

It's something like this whole story I've been spinning out that has, in my opinion, the best chance of explaining and justifying why we think we have inviolable rights, and why justice ought to be upheld. I think I'd have explain it a lot more, and answer some more objections, before we could say that it was a really comprehensive, compelling solution to the problem of justice. But at least you have the outlines of a solution.

Well, that's it for our discussion of ethics per se. As we've seen, ethics overlaps quite a bit, at least when talking about rights and justice, with political philosophy. The next item on our plate is political philosophy itself. I want to make a transition to that topic, however, and tie what we've been talking about, as regards rights and justice, into a discussion of the necessity of government.

Suppose we had a lot more time than we have had to talk about ethics. And we sat around and hashed things out in great detail, and talked about a lot of other theories of justice. Then suppose you decide, after all that careful work, that as it turns out, rule consequentialism -- perhaps a rule version of hybrid consequentialism -- is the correct theory of conduct. So now you're convinced you know what, in general, you ought to do; and you think you've given a philosophical justification for your theory of what you ought to do.

But isn't it possible that even after all of that, someone might still not care? Isn't it quite possible that someone -- if not you, then someone else -- might say, in private, "Sure I know what I ought to do. But I don't care what I should do. Morality is for chumps. I'll violate your rights any day if it's to my advantage and I can get away with it. I'm perfectly happy being totally unjust." Now you know that there are people in the world just like that. You have probably met some, or at least, you certainly know that they exist. You can't reason those people into being good eggs; they're bad eggs, they'll take advantage of you and there isn't a whole lot that you can do about it except to protect yourself.

The long and short of it is that this is why government is necessary. You could as it were take the law into your own hands, and see to it personally that others do not violate your rights; but if everyone did that, we would have a state of anarchy. It's better, for various reasons, that you leave the administration of justice and punishment up to a legitimate government. The institution of government is necessary, I think, and I think most of you will agree with me about that.