The Fallacies of Egoism and Altruism,
and the Fundamental Principle of Morality

(after Kant and Nelson)

I have not done wrong.

The "Negative Confession" or Protestation of Ani, The Egyptian Book of the Dead, The Book of Going Forth by Day, The Complete Papyrus of Ani, Featuring Integrated Text and Full-Color Images, translated by Dr. Raymond O. Faulkner [1994, 1998, Chronicle Books, San Francisco, 2008, Chapter 125, Plate 31], hieroglyphic transcription, E.A. Wallis Budge, The Egyptian Book of the Dead, The Papyrus of Ani [1895, Dover Publications, 1967, p.198] -- the first Confession as translated, but the 42nd and last in the order of the manuscript.


Karman.y evâdhikâras te mâ phales.u kadâcana /
mâ karmaphalahetur bhûr mâ te sango 'stv akarman.i
,

Set thy heart upon thy work, but never on its reward.
Work not for a reward; but never cease to do thy work.

The Bhagavad Gita, 2:47, Juan Mascaró translation [Penguin Books, 1962, p.52]


Virtue pursued with intent deserves no reward;
evil committed without intent merits no punishment.

Pu Songling, "An Otherworldly Examination," Strange Tales from a Chinese Studio, translated and edited by John Minford [Penguin Books, 2006, pp.6-8]


The State of Nature has a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions.

John Locke, The Second Treatise of Civil Government, §6


Now whoever wishes to set aside the purely moral consideration of human conduct, or to deny it, and to consider conduct merely according to its external effect and the result thereof, can certainly, with Hobbes, declare right and wrong to be conventional determinations arbitrarily assumed, and thus not existing at all outside positive law; and we can never explain to him through external experience what does not belong to external experience. Hobbes characterizes his completely empirical way of thinking very remarkably by the fact that, in his book De Principiis Geometrarum, he denies the whole of really pure mathematics, and obstinately asserts that the point has extension and the line breadth. Yet we cannot show him a point without extension or a line without breadth; hence we can just as little explain to him the a priori nature of mathematics as the a priori nature of right, because he pays no heed to any knowledge that is not empirical.

Arthur Schopenhauer, The World as Will and Representation, Volume I, §62, p.342 [Dover Publications, 1966, E.F.J. Payne translation]


But guns he had seen, in the hands of men on Mars, and expression of Jill's face at having one aimed at her he did not like. He grokked that this was one of the critical cusps in the growth of a being wherein contemplation must bring forth right action in order to permit further growth. He acted.

Michael Valentine Smith, Stranger in a Strange Land, by Robert Heinlein [1961, A Berkley Medallion Book, 1968, 1973, p.69]

Ethical goods are goods in relation to persons -- goods for persons. There are multiple persons, and these are divided generally into self and others. Ethical goods thus fall into two categories: goods for the self and goods for others. All ethical goods are autonomously defined by selves (i.e. people know what they like), except in relation to morality, which contains absolute ethical goods. The pursuit of goods for the self is self-interest, and in general it is no moral duty, only prudence, to pursue one's own self-interest. Thomas Jefferson, in a letter from 1814, expresses this nicely:

But I consider our relations with others as constituting the boundaries of morality....To ourselves, in strict language, we can owe no duties, obligation requiring also two parties. Self-love, therefore, is no part of morality. Indeed it is exactly its counterpart. It is the sole antagonist of virtue, leading us constantly by our propensities to self-gratification in violation of our moral duties to others.

By contrast, we find Immanuel Kant saying, "...it is a duty to preserve one's own life" [Foundations of the Metaphysics of Morals, Lewis White Beck translation, Library of the Liberal Arts, 1959, p.14, ...sein Leben zu erhalten, ist Pflicht, p.397]. However, preserving one's own life is not a duty. It is a good, but a non-moral good. Non-moral goods are matters of ethical hortatives rather than imperatives, as explained in relation to the polynomic theory of value. Kant is probably under the impression that self-preservation is a duty, and so suicide a sin, because of Christian ethics, not because of the eternal forms of reason to which he appeals. Greek and Roman moralists rather admired certain kinds of suicide. But they were pagans. Even Dante excuses the suicide of virtuous pagans, such as Cato the Younger. If suicide were morally wrongful, the only effective sanction against it would be of the sort threatened by Christianity:  denial of sanctifed burial, and damnation to hell. Punishment, however, only provides a prudential, not a moral, motive for goodness, as Kant well understood himself. The character of the action itself must be wrongful and the moral duty unconditioned. Yet is Kant himself going to require the hero to preserve his own life when its sacrifice might save his honor, his fellows, or his Nation? Did Jesus have a duty to preserve his life when its Sacrifice would Save mankind? Even if Kant did not believe in Christian Redemption, it is hard to imagine him being able to sustain an argument that self-preservation is required in all circumstances. On the other hand, we now tend to see suicide as the result of the evils that may drive a person to it. The evils are then the problem, not the person, and the remedy for attempted suicides is to address those. Also, when we see suicide running in families, we realize that the component of mental difficulties may be significant.

Confusion about moral and non-moral goods, goods for selves and good for others, produces characteristic fallacies, as follows:

  1. The fallacies of egoism are: 1) egoistic moralism (or moralistic egoism), the sense that it is a moral duty to pursue one's own interests. Ayn Rand sounds like this, and many earlier moralists, such as Kant, posit a category of "duties to self," which Jefferson properly denies above. Kant's duty to preserve one's own life is therefore an example of egoistic moralism.

    Shortly after self-preservation, Kant gives us an even more problematic example of egoistic moralism:  "To secure one's own happiness is at least indirectly a duty" [op.cit., p.15, Seine eigene Glückseligkeit sichern, ist Pflicht (wenigstens indirekt), p.399]. Kant does give us a fragment of an argument for this, that "discontent with one's condition under pressure from many cares and amid unsatisfied wants could easily become a great temptation to transgress duties" [ibid.]. So we are required to become happy lest our unhappiness tempt us into doing wrong. This is an extraordinary and absurd proposition. In fact, Kant himself later discourses at some length on how there is no certain way to obtain happiness, in part because a person "can never definitely and self-consciously state what it is he really wishes and wills" [p.35]. Then, even if we know what we think we want, "the task of determining infallibly and universally what action will promote the happiness of a rational being is completely unsolvable" [p.36]. Since Kant himself adopts the sensible principle that it cannot be a duty to do something that we cannot do, the idea that securing one's happiness, certainly within this lifetime, would be a duty is incredible. And what awaits the Christian who has failed to dutifully become happy? Will God damn the willfully unhappy soul? (if there even is such a thing). This is difficult to credit.

    2) egoistic [moral] aestheticism, the sense that no moral duty exists to restrain the actual pursuit of one's own interests (sounds like Nietzsche but is not Rand). Egoistic aestheticism eliminates all moral duties to others, leaving only prudent or "enlightened" self-interest to govern relations with them. An egoistic aestheticism which is not a moral aestheticism would simply mean that goods for the self are worthy of pursuit; and that is not a moral fallacy. Egoistic moralism and egoistic aestheticism can actually be combined, which would make it a duty to pursue self-interest whatever the cost to others.

    Moral duty does arise where goods for others, which may or may not overlap goods for the self, are concerned. Moral duty consists of respect for the autonomy of others, which means allowing the free exercise of the innocent, competent will of others in regard to their own interests.

    It has become common to say that people have rights wherever they have interests, but this principle does not allow for "compossibility," the possibility that the rights can all be exercised at the same time, since many interests overlap and conflict (unless we just define "interest" to prevent this). Such "rights" must necessarily be abridged, a dangerous characteristic, since any rights can then be abridged for any expedient reason. If not all interests are protected by rights, however, then rights can be moral and legal claims that cannot be abridged.

    This formulation of the nature of moral duty is functionally similar to Kant's version of the moral law as requiring one to act always to treat others as ends also and never as means only. Since treating others as means is to use them to further one's own self-interest (or some other interest), and this can be done in many completely innocent ways, the crucial question is what treating someone as an "end also" amounts to. An "end" clearly stops the action of the will, so that the will does not continue to some further good. That makes the "end" a good-in-itself. While we may value others as goods-in-themselves, we usually do make use of them for ulterior ends; and the only way to reconcile their function as both end and means is if they are willing to pursue some ulterior end in our behalf. Thus, Kant's formulation calls on us to respect the autonomy and dignity of persons, allowing them the freedom to help or not to help us in the pursuit of goods. If they are not willing to help us, then we cannot use them as means to our self-interested ends. That complements the version of moral duty given above. There we leave people alone to pursue their self-interest, while with Kant we do not force them to pursue ours.

    I should note, however, that this interpretation of Kant is not consistent with Kant's own view of the moral law; for Kant actually states the rule as "Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only" [op.cit., p.47]. Thus, one should treat oneself as an end also as well as means. Since it doesn't make any sense that one could violate one's own will, Kant needed to have in mind more than just autonomy as the content of the self as an end. Since that is the area where Kant's theory seems indefinite, leading to endless interpretations over the years (including rejection by Schopenhauer as indeterminately vague), and would in any case involve duties to self, which don't exist, I do think that part of Kant's moral law can be amputated without real loss, and that it is appropriate to do so. Respecting the autonomy of others is a simpler, more definite, and more defensible principle than whatever it would mean to respect oneself, as well as another, as an end in itself. [note]

    Leonard Nelson, although essential to the treatment of ethics here, with his theories of ideal ethics and of moralism, stuck too closely to Kant's first version of the moral law (to act so that the maxim of one's action can be universalized without contradiction), which is moralistic, and produced a moralistic formulation of the moral law himself. Thus, he calls the moral law "the principle of abstraction from the numerical determination of persons" [System of Ethics, Yale, 1956, p. 113] and says:

    If we suppose that all interests affected by our action are those of a single person, if we suppose, in other words, that the interests of the person affected by our action are ours as well, we would favor the preponderating interest regardless of whether it is our own or that of the other person. [ibid. p. 114]

    This makes Nelson's theory actually teleological, for right action is then to bring about the "preponderating interest" among all those affected by an action, though, dealing with actual affected interests, this is not quite as absurd as teleological theories that simply require that the "greatest good" be effected in every situation, which is actually beyond the scope of human cognition or action. Nelson's theory, nevertheless, is moralistic both because every action then becomes a moral issue, where the "preponderating interest" must be calculated, and because it can make some non-moral interest of others into the consideration which determines moral action, for there is nothing to prevent the "preponderating interest" from being a non-moral interest. Nor can the "preponderating interest" even be determined in a theory of value where most goods, the goods of ideal ethics, are not absolute and will often not, and could not, be agreed upon by different persons. Only where a moral issue is already involved will there be a "preponderating interest" that is absolute, determinable, and preemptive over non-moral and personal goods; and such a moral issue, as above, will always involve the respect for the innocent, competent will of others with respect to their own interests.

    It is a shame that Nelson errs when it comes to the content of the moral law, but this provides an important lesson how mistakes can be made even in the context of a theory that is sound and fruitful. Similar problems occur with Nelson's view of Socratic Method and non-intuitive immediate knowledge.

    A reconcilation of teleological and deontological ethical theories is possible when we note that some ends are not to be attained but simply, as already attained, to be respected. That will occur with persons as ends-in-themselves. A Utilitarian or other teleological theory that allows persons to be used, simply as means for some ulterior end, overlooks the status of persons as ends already. It has always been possible to argue for a teleological theory by saying that individual rights, etc. are among the appropriate ends that teleological ethics would be pursuing. One need merely add that they are not among "appropriate" ends but are absolute ends which absolutely restrict morally acceptable action. Since persons as ends are not purposes to be realized through action but are features of the moral universe that absolutely restrict action, it is more straightforward and revealing to see morality in deontological rather than teleological terms. Now, however, these can be translated into one another, and teleological theories that allow for expediency rather than morality can be revealed as relativizing, not morality in some abstract sense, but the moral worth of a person as an absolute end-in-itself and good-in-itself.

    Goods for the self are interests of person, property, and contract. These translate into rights. "Interests of person" are the possession and control by a person of their own body, labor, and other attributes of their personal status (e.g. reputation, civil rights, etc.). "Interests of property" are the possession and control by a person of tangible and intangible assets, distinct and separable from the person, the ownership of which is recognized in custom and law, usually giving the owners powers of exclusive possession, use, and exchange. Interests of person and property impose duties of respect to refrain from the use of fraud and force against the person and property of others. "Interests of contract" are the agreements and promises through which interests of person and property are usually managed and altered, and so respect for person and property also becomes respect for contract.

    Interests of person and property in general forbid wrongs of commission, i.e. fraudulent or violent damaging acts against persons and property, by others. Moral duty also forbids wrongs of omission -- or posits duties of commission (or duties to act) -- requiring positive actions for the sake of another because of contract (see below) or where fundamental interests, such as life and limb, are endangered. The distiction between duties of omission and commission is ancient, as Thomas Jefferson noted in 1813, in a letter to John Adams, about rabbinical law:

    From the law of Moses were deduced six hundred and thirteen precepts, which were divided into two classes, affirmative and negative, two hundred and fourty-eight in the former, and three hundred and sixty-five in the latter.

    The duties of omission (the negative ones) thus constitute 60% of the total. This may indicate their more fundamental and straightforward nature, as the Ten Commandments themselves mostly begin with "Don't" (Lô' in Hebrew). The duty to act in the cases of commission involves the judgment that the other person is in some respect physically unable or mentally incompetent to help themselves. The pursuit of goods for others is altruism.

  2. The fallacy of altruism, or altruistic moralism (or moralistic altruism), is the sense that there is a general duty, or that morality as such requires us always, to act in the interest of others. On the other hand, an "altruistic moral aestheticism" [or, simply, "altruistic aestheticism"] is not a moral fallacy; for this only means that a person may act for the good of others if this seems good, which is unobjectionable as long as the action respects the autonomy of others, i.e. is not against their innocent and competent will. The asymmetry between egoistic and altruistic moral aestheticism, that one is a fallacy and the other isn't, is due to the circumstance that morality limits the pursuit of self-interest and posits respect for others. The removal of moral constraint in aestheticism thus would be motivated for the self, which can then gain through wrong, but would not be motivated for others, who were protected from wrongful loss.

    As it happens, Kant gives us an example of altruistic moralism hard on the heels of his duty to preserve one's own life:  "To be kind where one can is a duty" [op.cit., p.14, Wohltätig sein, wo man kann, ist Pflicht, p.398]. Kindness is a virtue, and a good, but generally not a duty. Kant expands on its meaning by speaking of those who have "inner satisfaction in spreading joy, and rejoice in the contentment of others which they have made possible" [p.14]. This all sounds like activities that are certainly supererogatory. The misanthrope can live a quite morally correct, even laudable life, without going around "spreading joy." Kant's addition of "where one can" [wo man kann], however, makes it sound like what he has in mind are non-contractual duties of commission, such as feeding the starving when one has the resources to do so. This goes far beyond kindness, and even beyond "philanthropy," which is a word that Kant uses [p.15], although perhaps not in precisely the modern sense of charitable liberality. Feeding the starving will likely be "spreading joy" among them, but the idea that one has a duty to be "spreading joy" among people in general is absurd. People who actually try to do this are often found by sensible persons to be insufferable.

    Altruistic moralism is often a tempting doctrine because the rule for the specification of non-contractual duties of commission appears to be complex. There will be such a duty on a person only where:

    1. The other is unable to help themselves,
    2. the other is in danger of serious and irreversible harm,
    3. there is no one else present who has a more defined contractual obligation to help the other (e.g. lifeguard, parent, physician, policeman, etc.) and who is able to do so, and
    4. a person is able to act competently to prevent that harm without comparably endangering either themselves personally or the interests of those who are contractually dependent upon the agent for support (e.g. children or other family, etc.).

    A person who does more than is required by these conditions, i.e. who acts even at the cost of endangering themselves or damaging their own interests of comparable magnitude to those originally endangered, acts with supererogation, i.e. beyond the requirements of moral duty. Altruistic moralism denies supererogation. Since non-contractual duties of commission involve judgments of incompetence or physical disability, altruistic moralism implies paternalism, i.e. the judgment that the agent knows better the interests of others, and how to pursue them, than they do themselves. Paternalism and altruistic moralism thus will lead to basic violations of moral duty as the actual innocent and competent autonomous will of others may be abridged by force. That is a general problem with any form of altruism, that the self-defining character of what is good is transferred from the other to the altruistic agent, always raising the danger that another may be judged incompetent simply because their judgment about what is good for them may differ from the agent's.

ETHICS
Ideal or Euergetic Ethics, the good and the bad: goods for self --
(moralized into egoistic moralism)
MORALITYIdeal or Euergetic Ethics, the good and the bad:
goods for others --
(moralized into altruistic moralism)
Morality, right and wrong:
moral goods --
(de-moralized into egoistic [moral] aestheticism)
Right Good

Graphic Version of Table

Interests of contract are reciprocal obligations undertaken in innocent (not agreements to do wrong), informed (without fraud), free (without force or threat), deliberate (with intention to assume an obligation), mutual agreement between competent persons. Most clear obligations of commission will be of this type, although some will be implied contracts with persons incompetent to contract in their own interest, e.g. between parents and their children, whose own interests the parents have a prima facie obligation to pursue in their behalf. Since children cannot agree whether to be born, parents in effect judge on behalf of children that life is good and that it is in their own interest to exist. Government and the authority of the state may also be based on implied contract (the "social contract"), not because the contractors are incompetent (although children born into the state actually are), but because the just authority of the state is merely derived from the need, for all and against all, to enforce rights of person, property, and contract and to punish wrongs of negligence, violence, and fraud. The contract is implied because by definition it is agreed to by all persons of good will per se, whose subsequent actual deeds and agreements are then accordingly judged right or wrong. This implied agreement is, of course, open to much abuse, since any ambiguity about the just powers of the state, especially if inspired by political or religious moralism, tends to be decided by those using political power in favor of increasing their power, easily rationalized as enforcing moral principles. As ambiguities continue over time, there will be a continuing increase in the power of the state.

Since children for some time really are incompetent and helpless, it is a good question to what extent the parental relationship is a contractual duty of commission or a non-contractual one: but if there is no duty to bring children into existence (which does not seem right outside of moralistic religious systems), then the act by the parents must be either supererogatory or in the parents' self-interest. In the latter case, which seems like the most reasonable motivation (since people derive considerable personal satisfaction from having children), the relationship established is clearly an implied contractual one, with the benefits of parenthood weighed against the obligation to pursue the interests of the children. In the former case the relationship would be more one of non-contractual duty, but of a peculiar type, since the parents are responsible for the very existence of the incompetent persons and so assume a primary responsibility that has much more of the flavor of a contract than as in the case of a good Samaritan who happens across someone with a preexisting need. A non-contractual relationship, on the other hand, would mean that parents really would get nothing in return, and this seems contrary to fact, and to expectation. Children have usually been considered great goods for parents.

Rights of Sentient and Insentient Beings

The ability to enter into contracts, and to respect interests of person, property, and contract, is the mark of a rational being. Since animals lack abilities in some or all of these respects, they are not rational beings. That is different from judging them incompetent: they are not incompetent rational beings, simply competent animals. As such they cannot be persons in the same sense as human beings. Their personhood, however, can be defined differently than as identical with that of a rational being. An animal may be a sentient being, i.e. able to perceive and suffer. Respect for sentient beings imposes duties not to gratuitously or maliciously inflict suffering. This means that there are "animal rights"; but animal rights cannot be the same as the rights of persons in morality as given above, for animals cannot respect the rights of others and must lose some rights, at least, in consequence.

Nelson distinguished between beings as "subjects of rights" and as "subjects of duties." He denied that animals are subjects of duties (since they are not rational), but also affirmed that animals are subjects of the same rights as rational beings. This cannot be so, not just because bears, lions, and sharks cannot be allowed to roam around eating people (which they would do with, for them, complete innocence), but because animals do not exist at the same level of consciousness, of existence, as rational beings. Indeed, there is a continuum of levels of consciousness, and animals at the higher end are worthy of more respect, thereby possessing more rights. As Schopenhauer said, a human being suffers more from a mosquito bite than a mosquito does in being killed by the human -- and Schopenhauer didn't even know about mosquito born diseases. A mosquito is very low on the scale even of sentient beings, and thus has a life that is respected by virtually no human beings (apart from the Jains in India, who accord equal dignity and rights even to the smallest insects and bacteria -- although their passion for cleanliness does involve killing a lot of mold, fungus, and bacteria). Since human beings are natural omnivores, and have over the centuries artifically bred many species (like cattle) for food or clothing, there is no intuitive or prima facie moral claim for vegetarianism. Whether animals have rights to the extent that they should not be eaten or otherwise used by humans leads, however, off into more general questions about respect for the dignity of beings in general and what kinds of duties are imposed by any objects as goods-in-themselves.

Even if objects are neither rational nor sentient, their dignity can impose duties, e.g. not to vandalize nature. Since beauty, sentient beings, and rational beings are all goods-in-themselves, this indicates how morality and ethics are actually embedded in aesthetics, the theory of goods-in-themselves, and gives us a clue about the source of moral duty: that some goods-in-themselves simply involve moral duties, perhaps of different types. Goods-in-themselves are ends-in-themselves that restrict action to different degrees, imposing different degrees of respect. Animal rights advocates (e.g. PeTA [note], People for the Ethical Treatment of Animals) who think that animals must be treated with the very same respect as people, or environmentalists who think that nature must be treated in much the same way, forbidding human "exploitation" of nature (e.g. Earth First!), have absolutized the value of sentient beings or natural objects to the same level as rational beings. No human cultures, except perhaps the Jains, have done anything quite like this -- and the Jains, who refuse even to be farmers, are absolutely dependent for life on the activities of others.[note] Even hunting cultures, who respect their prey as spirits or gods, nevertheless still kill them. They simply do so reverentially (as one sees Russell Means, one of the activists in the American Indian Movement, doing at the beginning of the 1992 movie The Last of the Mohicans) -- though "reverentially," paradoxically, could even mean ritually torturing them.

D'Arcy Moses, a Montreal fashion designer who works in furs at Natural Furs International, refuses to concede the ethical case of anti-fur activists precisely because he relies on the principles of his own background -- he is a Canadian Indian (politically called "First Nations") -- where furs are essential to life and pose no moral difficulty. Moses deliberately uses "Native," as he says, design motifs in his work [example shown]. Although anti-fur enthusiasm was once common in the fashion industry, it has now receded.

The modern objection may be less to the killing and use of animals or the use of nature than to the mass culture and the division of labor which now means that animals are raised in vast numbers on farms by corporations and killed in slaughterhouses rather than given individual attention by consumers. It may, indeed, be reasonably questioned whether "reverence" is possible under the conditions of mass production. In Japan, where business and production are usually still protected by the Shintô kami (gods), to the point of having Shintô shrines even in laundromats -- with shrines universally on the roofs of department stores -- one may say that the old observances survive even in modern form. However, in the United States this is usually not regarded as desirable: Religion is being actively driven out of business, since a specifically Shintô, Christian, or Jewish workplace is regarded by law as religiously discriminatory (a "civil rights" offense). At some point such paradoxes are going to have be resolved: if reverence is demanded for animals and nature, then traditional sources of reverence will have to be respected also. One often suspects, however, that anti-corporate and anti-modern activists would look more benignly on Shintô-blessed business than on a Christian-blessed one, out of bias and antipathy against monotheistic religions of transcendent reverence, like Judaism, Christianity, and Islâm, which devalue nature in relation to God.

On September 22, 2014, Tanya Tagaq won the Canadian Polaris Music Prize over several established Canadian rock groups. Tagaq is a native Inut (plural Inuit), which used to simply be called "Eskimo," a term that has fallen out of favor, for both ethnographic and political reasons. Tagaq uses Inuit "throat singing" in her songs, which is probably not something heard in rock music before, certainly not in the United States. This is a long way from Nanook of the North [1922]. After accepting the award, Tagaq made a statement:

On a quick side note, people should wear and eat seal as much as possible, because if you imagine an indigenous culture thriving and surviving on a sustainable resource, wearing seal and eating it... It's delicious, and there's lots of them, and fuck PeTA."

Tagaq then displayed a bracelet evidently made from seal fur. PeTA responded that they had never been against seal hunts by indigenous peoples and that Tagaq, apparently, was ignorant of their program. However, Tagaq was obviously urging everyone in the audience to use seal products, which means that she hopes that the Intuit seal hunt will become a mass commercial enterprise of just the sort that PeTA does in fact wish to prohibit. This would be an industry that would provide the sort of income to the Inuit that would benefit them far beyond a subsistence way of life. Also, since PeTA is based on a conception of animal rights, it is not clear how they could make an exception for murdering animals even for the traditional life of indigenous peoples. PeTA should expect the Intuit to reform and become vegans along with everyone else. At the same time, if Tagaq is thinking of a commercial seal industry, it might call into question whether the seals are in fact a "sustainable resource." Either way, perhaps we have a "teachable moment" of the clash between the politics of comfortable white Western liberals and the values and aspirations of genuine "indigenous peoples."

Crime and Punishment, Repentance, Restitution, and Atonement

The Polynomic Theory of Value

Kant's Foundations of the Metaphysics of Morals, Grundlegung zur Metaphysik der Sitten

Non-Contractual Duties of Commission and Privileges of Necessity

Psychological Types

Confucius [K'ung-fu-tzu or Kongfuzi]

Ethics

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The Fallacies of Egoism and Altruism,
and the Fundamental Principle of Morality, Note 1

Kant's Foundations of the Metaphysics of Morals,
Grundlegung zur Metaphysik der Sitten

Kant's treatment of morality in the Foundations of the Metaphysics of Morals should be given a more thorough treatment here. This short book is the basis of all Kant's moral thought and it has often been assigned to be read even by undergraduates. Many people are thus exposed to extensive discussion of Kant's ethics without ever becoming familiar with the larger Critique of Practical Reason -- let alone the general basis of his thought in the Critique of Pure Reason. So the book provides what is generally understood about Kant's "categorical imperative," i.e. a Moral Law that is an unconditioned ("categorical," meaning not for an ulterior purpose) command ("imperative"). After some preliminary discussion of good will and some examples of moral duties, Kant gives us the first and fundamental version of the Law:

But what kind of a law can that be, the conception of which must determine the will without reference to the expected result? Under this condition alone the will can be called absolutely good without qualification. Since I have robbed the will of all impulses which could come to it from obedience to any law, nothing remains to serve as a principle of the will except universal conformity of its actions to law as such. That is, I should never act in such a way that I could not also will that my maxim should be a universal law [Foundations of the Metaphysics of Morals, Lewis White Beck translation, Library of the Liberal Arts, 1959, p.18] -- d.i. ich soll niemals anders verfahren, als so, daß ich auch wollen könne, meine Maxime solle ein allgemeines Gesetz werden. [Grundlegung zur Metaphysik der Sitten, p.402]
Similarly, Kant says:

There is, therefore, only one categorical imperative. It is: Act only according to that maxim by which you can at the same time will that it should become a universal law. [Beck, p.39] -- Der kategorische Imperativ ist also nur ein einziger und zwar dieser: handle nur nach derjenigen Maxime, durch die du zugleich wollen kanst, daß sie ein allgemeines Gesetz werde. [p.421]

In stating the Imperative this way, it is no accident that it sounds no different in form from a physical law of nature. Indeed, Kant immediately goes on to say precisely that:

Act as though the maxim of your action were by your will to become a universal law of nature. [Beck, p.39] -- handle so, als ob die Maxime deiner Handlung durch deinen Willen zum ALLGEMEINEN NATURGESETZ werden sollte. [p.412]

Of course, true laws of nature (Naturgesetzen), like gravity, involve physical necessity. They cannot be violated. Moral laws are quite different. They are moral obligations precisely because people can choose not to obey them. Their violation is not impossible, simply a moral wrong. But this gives us an important insight into Kant's thinking:  He wants to see moral laws as the equivalent in a realm of freedom, or among things-in-themselves, to physical laws in the phenomenal world. They are both the result of the functioning of Reason, which (1) makes rules, (2) applies them universally, and (3) disallows contradictions. The peculiar term of the moral "maxim" thus stands for the appropriate rule as it would be formulated by reason, and the "universalization" of the rule goes along with an implied absence of contradictions once this conceptual exercise is done. This all is of great metaphysical significance to Kant, who wants Reason to function in similar ways in a deterministic world and with transcendent freedom, implying a mutual dignity and correspondence between science and morality. We can put it quite starkly:  Morality is the science of the transcendent.

Of course, we know that there are no actual laws of science without a great deal more going into them. An understanding of physical law is not produced by randomly tossing concepts of space, time, mass, charge, etc. into the structure of pure mathematics. Indeed, while it was once the project of modern philosophers to derive pure mathematics from pure logic, even this will not work. As Kant himself believed, pure mathematics, even pure arithmetic, involves synthetic first principles of demonstration. Yet Kant completely overlooks this circumstance when it comes to morality, which must spring fully formed, like Athena from the brow of Zeus, from Reason in its most abstract and purely logical form.

Thus, in Kant's moral philosophy we never get the kind of analysis of moral propositions as we do of the principle of causality as a synthetic a priori proposition in the Critique of Pure Reason. Kant sees causality as a complex product involving categories of pure reason, a function of synthesis, time, imagination, and something he calls a "schematism" (the way the imagination construes causality in temporal form). With the moral law, however, we get a simple rule pulled directly out of the metaphysical hat, and no real consideration at all of the source of the concepts involved or the validity of derived propositions. If such an approach were successful, we could have no complaint. But it is not successful; and with the qualifications, elaborations, and restatements of the fundamental version of the moral law we get the impression that Kant himself feels the inadequacy of the principle. This worry, and all the tinkering, is to Kant's credit; but there remains the problem, also evident in his theoretical philosophy, that he never went back and recast the earlier theory, of whose drawbacks he has become sensible. Nor, with the remaining errors, may that have been possible.

There is something about Kant's rule of universalization that captures a feature of morality. Children tossing stones into the Grand Canyon, or stealing rocks from the Petrified Forest (both in Arizona), are liable to be reproached by their mothers, or by Park Rangers, with the challenge, "What if everyone did that?" To which, of course, the pure and cogent Kantian response is, in the former case, that the Canyon would fill up, and, in the latter, that the petrified forest would disappear. In each case the action would produce the contradictory circumstance, "then nobody could do it." As intuitive and customary as such examples are, however, the principle will also produce answers contrary to our intuitions. A child may aspire to grow up and become the President of the United States. But clearly, this is not possible for everyone. A United States consisting of universal Presidents would be a thing of comedy (as with everyone becoming identical Scotsmen in Monty Python) and by any reasonable functioning of election law would be impossible, indeed absurd. So, does this mean, by the principle of Kant's categorical imperative, that it is immoral for anyone to be President of the United States? Apparently so. But while I know of people who would argue that the office is indeed immoral, to most that conclusion would sound bizarre. Nor is it possible for everyone to become professional astronomers, baseball players, architects, or universally engage in countless other livelihoods. The impossiblity is not a moral one, just a practical one.

Of interest also is the intuitive principle that one ought not take rocks from the Petrified Forest. For this is not in fact universally true. Accredited geologists certainly can obtain permission from the Park Service to harvest samples from the forest. There is an obvious reason for this. No one would know that the rocks were petrified wood in the first place if it were not for the geologists, which means the rocks only have meaning and value because of geology. Continuing research on the rocks contributes even more to their meaning and value. Now, Kant's theory can actually accommodate this circumstance. The maxim of the geologist, after all, is not to take rocks just for one's own personal diversion, but to take a few rocks, under controlled and authorized conditions, on behalf of science and knowledge, which after a fashion is in the interest of the rocks themselves. Yet Kant himself seems reluctant to load up moral maxims with such qualifications. Whether he allows that or not, however, we should already be able to see that universalization alone underdetermines the circumstances and requirements of morality.

A good example of how perplexing Kant's principle can be in its abstractness comes from Lewis White Beck's own introduction to his translation of the Foundations. Beck is discussing objections to Kant's theory. The second objection is:

Kant's ethics is trivial, and does not discriminate between moral and merely permissible actions. For, it is said, I can make many maxims universal without rendering them moral. For instance, I have the policy of writing my name on the flyleaf of each of my books, and I can consistently will that all men, indeed all rational beings, should write their names in their books; but this does not mean that I have a moral obligation to write my name in my books. This criticism, however, overlooks the fact that Kant carefully distinguishes between actions that conform to law (legal actions) and those done because of a law (moral actions). I do not write my name in my books because I can will that others should do so; I do so in order to keep them from getting lost. But in a moral action, I decide what I ought to do precisely by finding out what I will that every rational being should do. Kant does not, perhaps, make this as clear as one might wish. [Beck, p.xvii]

Indeed, I think that Kant has failed to make matters clear to Beck. It is not a moral duty for me to write my name in my books because the maxim of not writing my name in my books can be universalized with as little contradiction as the maxim of doing it. It is logically possible for everyone to write their names in their books as for no one to do so. Kant's moral rule is indeed about what is morally permissible if the maxim can be universalized without contradiction. Kant's moral rule generates a moral duty when universalizing the maxim for not performing the action generates a contradiction. An impermissible action makes the opposite action, not just permissible, but obligatory.

Beck has then misapplied Kant's distinction between actions that conform to law and actions done because of law. Actions may be done that conform to law out of a variety of motivations (see the discussion below). One may always have self-interested or other reasons for conforming to the requirements of morality. To Kant, however, moral action requires (1) that one mean and try to act in conformity to the requirements of morality, and (2) that one's motivation is entirely the disinterested consciousness of duty -- although the latter is what is essential, and the good will and moral sufficiency of action remains even if there is some practical impediment or failure in carrying out the action itself. Since, as I have said, writing my name (or not writing it) in my books is not a duty, there is no duty to act in consciousness of. However, since either action passes the universalization test, they are indeed both therefore rendered moral in the sense of being morally permissible. This is not a trivial category -- but it is also not the whole of Kant's ethics.

Beck then digs himself deeper into a hole by saying, "I do not write my name in my books because I can will that others should do so; I do so in order to keep them from getting lost." One could just as easily say, "I do not kill my neighbor because I can will that others should do so; I do so in order to free his wife, my lover, from his attentions." Beck has fallen into the cardinal Kantian sin of introducing the purpose of an action into the issue of the morality of the action, violating the categorical (or deontological) character of moral duty. Keeping my books from getting lost is a morally innocent purpose, as is the act of writing my name in them. Other morally innocent purposes, however, like making a living, can be effected by immoral means, such as the practices of burglary or contract killing. So it is not one of Beck's books, but his well meaning defense of Kant, that has gotten lost.

One thing that both Beck and Kant seem to be insufficiently conscious of is the difference between commisison and omission. A duty of commission ("honor thy father and thy mother") requires a positive action, the failure of which results in a wrong of omission. A duty of omission ("thou shalt not kill") requires inaction, a negative action, the failure of which results in a wrong of commission (i.e. a murder). Some like to argue that inaction is as much action as action, but the logical distinction between doing and not doing is unavoidable, as are the practical and moral conditions that belong to action as opposed to inaction. After all, the theological Problem of Evil is not to accuse God of doing evil, but of inaction that allows and tolerates its presence from other causes (natural or willful). Why there would be such inaction is what escapes explanation, with theodicies typically attempting to shift responsibility for action away from God. Thus, in the case of writing my name in my books, we must remain conscious, as even Kant seems not to be, that there are matching maxims, to write and not to write. The problem of Beck's example and his argument comes from the failure to consider both.

The cardinal examples of duties that Kant cites in the Foundations involve both duties of commisison and duties of omission. There is also the problem that of four illustrations that he gives, only two of them, the second and the fourth, are actually moral duties.

  1. A man who is reduced to despair by a series of evils feels a weariness with life but is still in possession of his reason sufficiently to ask whether it would not be contrary to his duty for himself to take his own life. Now he asks whether the maxim of his action could become a universal law of nature. His maxim, however, is: For love of myself, I make it my principle to shorten my life when by a longer duration it threatens more evil than satisfaction. But it is questionable whether this principle of self-love could become a universal law of nature. One immediately sees a contradiction in a system of nature whose law would be to destroy life by the feeling whose special office is to impel the improvement of life. In this case it would not exist as nature; hence that maxim cannot obtain as a law of nature, and thus it wholly contradicts the supreme principle of duty. [Beck, pp.39-40]

    I have already considered above Kant's earlier assertion in the Foundations [Beck, p.14] that "...it is a duty to preserve one's own life." In his discussion in both instances, we do not find Kant considering the kinds of "evils" that in reality move people to suicide. The realities of disease, disgrace, crime, or devotion do not come up for consideration, even as Kant's reference to "self-love" excludes the selfless hero who throws himself on the hand grenade in order to save his fellows.

    More importantly in this passage, however, is Kant's casual assumption that self-love is "the feeling whose special office is to impel the improvement of life." Kant is in no position to know what the "special office" is of our natural feelings, unless he can know the essence and purposes of human nature. He does not claim, and on his philosophy cannot claim, such knowledge. Nor does he even state the case without paradox. If the purpose of our feeling is to "impel the improvement of life," it may well be, as Socrates concluded, that death is an improvement over what life may have become. In the case of a painful and terminal illness, especially in old age, one might wonder what it profits self-love, self-interest, or life itself to prolong matters. We also might wonder at the alternatives open to a person who, by easy and obvious steps, has ended up as the agent of a tyrannical regime, awakens to the horror and wickedness of his position, but then has no way out except suicide or effectively suicidal disobedience. This latter was traditionally admired in the Classical world and in China. Kant might make a stronger argument by claiming that our instinct is simply self-preservation, but then he would still have the difficulty of how he knows that self-preservation is the essence of the instinct.

    Kant's analysis thus seems morally shallow -- a "weariness with life" alone rarely moves anyone to suicide -- but also has the logically fault of essentially begging the question. If self-love is about our interest in goods for ourselves, then the assertion of Socrates that, "No one knows whether death may not be the greatest of all blessings for a man" [Apology, 29a, G.M.A. Grube translation], totally destroys Kant's premise. In fact, suicides rarely move us to moral condemnation, but usually to pity, and in extraordinary circumstances to admiration and praise. Kant seems insensible of this.

  2. Another man finds himself forced by need to borrow money. He knows well that he will not be able to repay it... [So he considers making a promise to repay without any intention to do so.] For the universality of a law which says that anyone who believes himself to be in need could promise what he pleased with the intention of not fulfilling it would make the promise itself and the end to be accomplished by it impossible; no one would believe what was promised to him but would only laugh at any such assertion as vain pretense. [Beck, p.40]

    Kant is on firmer ground here. The promise of a borrower is a moral and legal duty. If it were not, then lending would indeed disappear, as Kant imagines. What is interesting in this example may be the belief through much of history, which has not vanished even in the present, that lending money at interest is immoral. Kant thus overlooks an argument that might occur to many, that the wicked person willing to loan money at interest deserves to lose it, and that the disappearance of the institution would be a desirable outcome. Nevertheless, this is a case where universalization, as with rocks in the Grand Canyon or at the Petrified Forest, has a prima facie appeal. The caution in the case is that much depends, as with suicide, on circumstances that Kant does not consider. Taking them into consideration does not falsify Kant's theory; but it does undermine my confidence in the manner in which he thinks the theory should be applied, and it does provide a clue that the universalization principle as such may be lacking germane concepts and presuppositions that are necessary for practical conclusions.

  3. A third finds in himself a talent which could, by means of some cultivation, make him in many respects a useful man. But he finds himself in comfortable circumstances and prefers indulgence in pleasure to troubling himself with broadening and improving his fortunate natural gifts... He sees that a system of nature could indeed exist in accordance with such a law, even though man (like the inhabitants of the South Sea Islands) should let his talents rust and resolve to devote his life merely to idleness, indulgence, and propagation -- in a word, to pleasure. But he cannot possibly will that this should become a universal law of nature or that it should be implanted in us by a natural instinct. For, as a rational being, he necessarily wills that all his faculties should be developed, inasmuch as they are given to him for all sorts of purposes. [Beck, p.41]

    Here we get even more explicitly the extraordinary kind of claim in the first example. A man's faculties are "given to him for all sorts of purposes"? How does Kant know this? Is he familiar with the designs of the Giver? Of course, he is not; and he has no way of knowing what purposes our "faculties" have or why we possess them. And his reference to the indolent South Sea Islanders exposes his presumption, for exactly how does he expect the Tahitians to have made themselves "useful" in a culture that is innocent of most of the sorts of institutions and activities that Kant sees in his own? The Tahitians were certainly quite "useful" in terms of their own traditional expectations, and Europeans regarded them as lazy and their life easy just because they did not see them working at industries that they had never heard of and could not imagine. If Kant had been required to live under the conditions of subsistence agriculture, Polynesian tapu, war, and an arrogant and violent nobility, he might come to think of the life as somewhat less easy.

    While Kant's inability to know the purpose of any human "faculty" destroys the basis of any duty to "develop" them, and we might also reflect that one's "talents" depend heavily on a cultural context, so that a mathematical ability might not actually be that "useful" in a culture without a mathematical tradition, or an ability to memorize the Iliad or the Qur'ân all that "useful" for modern purposes, we must also reflect that many people have genuine talents that nevertheless hold no attraction for them and do not make them happy. A person might have genuine talent in mathematics or music or athletics without any real interest in mathematics or music or athletics. Is Kant saying that one has a duty to become "useful" by developing these abilities even if the result is an unhappy life? Such things happen, and we certainly know of parents who drive children in directions where they do have talent but which they may actually hate.

    This raises a question of profound importance for the whole of Kant's ethics. Is the general business of life "the pursuit of happiness," or is it the fulfillment of duty? If there is a general duty to become "useful" by developing our talents, regardless of our happiness, then the decision is for the latter, and we can only hope that happiness will be just happen to be the fortunate by-product of the fulfillment of duty. It would be a violation of duty to formulate our goals and activities in life with an eye principally to the fulfillment of happiness.

    I suspect that this is Kant's view, as part of a moralistic system of ethics in which, as Nelson says, "every action must be characterized as either fulfillment or violation of duty." But we also have the paradox, as I have noted above, that Kant thinks that "To secure one's own happiness is at least indirectly a duty." So under Kantian ethics, we seem to have a duty to develop talents that may make us unhappy, while we also have a duty to secure our happiness. This is especially acute when Kant's argument for securing one's happiness is that "discontent with one's condition under pressure from many cares and amid unsatisfied wants could easily become a great temptation to transgress duties." Developing a talent in an area for which one feels no attraction or affinity and which generates only "discontent" and even misery "could easily become a great temptation to transgress duties." This betrays a looming incoherence in Kant's thought, which is the result, as we shall see, of duty being the only truly rational goal of action.

    "It never occurred to you that many people wouldn't be happy doing 'what they can do best.' As a matter of fact, many people don't give a damn about what they can do best. They're more interested in doing what they like to do, what they want to do. There might be a musician playing at the music center tonight who could be a brilliant physicist if he wanted to be, but he likes music instead."

    Thus we have the problem with Kant's injunction as expressed by the protagonist in a story of F. Paul Wilson ["The Man With the Anteater," 1971, reprinted in Wheels Within Wheels, Infrapress, 2005, p.209]. Like most sensible persons, Wilson is concerned about how people find happiness, not about duties imposed by the supposed entelechy of one's nature.

  4. A fourth man, for whom things are going well, sees that others (whom he could help) have to struggle with great hardships, and he asks, "What concern of mine is it? Let each one be as happy as heaven wills, or as he can make himself; I will not take anything from him to even envy him: but to his welfare or to his assistance in time of need I have no desire to contribute..." Now although it is possible that a universal law of nature according to that maxim could exist, it is nevertheless impossible to will that such a principle should hold everywhere as a law of nature. For a will which resolved this would conflict with itself, since instances can often arise in which he would need the love and sympathy of others, and in which he would have robbed himself, by such a law of nature springing from his own will, of all hope of the aid he desires. [Beck, p.41]

    This is a case of non-contractual duties of commission. It sounds the most of any Kantian duties like "Therefore all things whatsoever ye would that men should to do you, do ye even so to them" [Matthew 7:12]. Again, the prima facie existence of such a duty as Kant asserts obscures the difficulties inherent in such duties in general and in this one in particular. The callousness of Kant's "fourth man" is comparable to that of Mr. "Smith" in the dilemma considered elsewhere. This portrayal is designed to prejudice the case, when a suitably concerned and caring person might reach the same conclusion without the fourth man's offensive reflections. We must consider the more realistic considerations of the non-callous, beginning with Benjamin Franklin in an essay of 1766 called "The Encouragement of Idleness":

    I am for doing good to the poor, but I differ in opinion of the means. I think the best way of doing good to the poor, is not making them easy in poverty, but leading or driving them out of it. In my youth I travelled much, and I observed in different countries, that the more public provisions were made for the poor the less they provided for themselves, and of course became poorer. And, on the contrary, the less was done for them, the more they did for themselves, and became richer.

    A politician saying something like this today certainly would be labelled callous and uncaring. We might even hear about "Social Darwinism," even though Franklin was writing long before Darwin, Herbert Spencer, or the true Social Darwinist, Friedrich Nietzsche (who, nevertheless, as a darling of the Left, is never attacked as one). It is more Calvin than Darwin that we are getting -- a social attitude that was probably more agreeable to Kant himself than the uses to which a moral principle like this would later be put.

    What Kant does not consider, but which the economist must, are sensible and valuable alternative uses of one's resources. Simply leaving one's money in the bank actually benefits others, since the bank loans money that may start businesses and hire people, benefiting them much more substantially than charity, and benefiting the community through the products or services of the business (note that contemporary Keynesians still don't believe this). Even the disposition of one's income, from wages or the interest of savings or investments, benefits others regardless of how it is spent. In fact, deciding that some of one's purchases are frivolous, and that the money should be given to the poor instead, may help put a merchant out of business, costing him and his employees their livelihood. So what is preferable, giving aid directly to the poor, which may sustain them briefly, or helping the growth of business and commerce, which lifts many more out of poverty? Even when we reflect that there will always be those who will not be able to support themselves and will always need charity, the question is about the best use of the money of any individual, who will know better than others what value his resources may serve and will have his own preferences, which will be morally innocent even if they are for no more than his own entertainment.

    Perhaps the most serious problem with Kant's idea is the moral hazard it creates. The belief that everyone who is comfortably off has a duty to give to the poor has led to the political program to simply take their wealth in order to "redistribute" it to the poor. The wealthy, or just the comfortable, should pay their "fair share" to the maintenance of the poor. This is a source of great evils. People with such a belief often have no better than a cargo cult understanding of economics -- even when they profess a Marxism that is already more sophisticated than their ideas. They do not believe that capital creates wealth or jobs, and they do not understand that money in the bank does not lie useless like treasure in a treasure chest (or gold at Fort Knox). They prefer a system where wealth essentially belongs to the government, which then maintains people who are in political favor and who will support the political party, i.e. the Democrats, who promote such government power. This creates a system of political peonage, which may be able to endure even as the economy upon which it is parasitic collapses into Mediaeval poverty -- as in Cuba -- a place whose poverty, misery, and tyranny do not in the least preclude, dampen, or shame its praise and idealization in American public, political, and academic discourse.

    Kant probably could not have imagined how the modern Left could have twisted a simple moral injunction to help the poor into a system of theft, tyranny, and general poverty. But this is an outcome that we cannot disregard in evaluating this kind of duty. As a non-contractual duty of commission, it must be qualified with all the circumstances of ability, knowledge, and autonomy that will surround such things, as well as, in this case, issues of political economy and the generation of wealth in a mass market.

    The idea that charitable systems, free of coercion or government, may benefit the poor better than the Welfare State, although still incomprehensible to the Left, is born out by history. Indeed, nothing reveals the misanthropy of the Left so well as their evident principle that people will not help others out of their own compassion and kindness unless the force of the State and the police compels them to do so. Indeed, the Left openly despises the terms "philanthropy" ("loving man") and "charity" ("love") precisely because they imply a voluntary liberality that is free of the iron hand of government authority, the collective action, and the totalitarian order that the Left admires.

The abstractness of Kant's categorical imperative makes for both its moralism, i.e. everything is a moral issue, with no boundary between moral and non-moral value, and its indeterminacy. And the terms that are required for judgments in particular areas, as with self-preservation and non-contractual duties of commission above, may be uncritically assumed (as with the "purpose" of our faculties) or overlooked (as with philanthropy). The universality upon which Kant rests the whole force of the moral law will already be a feature of any moral principle and so really only concerns the form of a law, with little clue about any germane content.

After Kant's examination of these four examples of moral duties, he does cite a distinction that looks like a mitigation of his moralism, that we have a "stricker or narrower" duty when we cannot think a universalized maxim without contradiction, while a maxim we can only will without contradiction would be a "broader" or merely "meritorious" duty. This never, however, becomes a distinction between imperatives and hortatives, as in the polynomic theory of value; and if the imperative force of the different duties is not abridged (i.e. they all remain imperatives), then Kant's distinction doesn't really make a difference.

As it happens, as Kant has gone along, he has been tossing in the concepts already relevant to a more substantive version of the moral law, and to providing distinctions between moral and non-moral value. Foremost among these concepts is that of a rational being. This will be used both to good and to ill effect in the development of Kant's moral thought. What must first of all be noted about it is that Kant is not going to think of it as derived from experience, yet neither does he carry out anything like the "transcendental deduction" on it that figured so prominently and importantly with the a priori concepts in the Critique of Pure Reason. Kant begs the question, and I am reminded of Hume's famous observation about systems of morality, where "of a sudden I am surpriz'd to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or ought not" [Enquiry Concerning Human Understanding, Shelby-Bigge edition, Oxford, 1902, 1972, p.469]. There is a similarly unexplained transition as Kant begins to load moral characteristics onto the nature of the rational being. Thus, we get features of the moral dignity of the rational being, and the moral respect that is owed to it. To Kant, these are not empirical qualities, and it is not clear or at all obvious how such things follow from the universalization principle of the moral law or from the mere concept of a rational being. Indeed, if certain forms of moral respect are owed, not just to rational beings, but even to sentient beings, this disrupts the ground of Kant's whole train of reasoning. Furthermore, if there are goods-in-themselves entirely beyond even rational and sentient beings, which are owed their own forms of respect, we may see how Kant beginning his inquiry merely with good will can have been a false start.

Nevertheless, the point that Kant develops, and the direction in which he continues, may be well taken. His assertion that, "every rational being exists as an end in himself and not merely as a means to be arbitrarily used by this or that will" [Beck, p.46] -- jedes vernünftige Wesen existiert als Zweck an sich selbst, nicht bloß als Mittel zum beliebigen Gebrauche fur diesen order jenen Willen" [p.428] -- is, I think, true; and it adds another feature, the concepts of means and ends, to the idea of a rational being. This leads directly to Kant's best and perhaps most famous reformulation of the moral law:

Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only. [Beck, p.47] -- Handle so, daß du die Menschheit sowohl in deiner Person, als in der Person eines jeden andern jederzeit zugleich als Zweck, niemals bloß als Mittel brauchest. [p.429]

As I have discussed above, the problem here is how one treats humanity in one's own self as an end also and never as a means only. Respecting the innocent, competent will of others provides a good principle in that respect; but one cannot wrongly contravene one's own will without multiple personalities.

What probably underlies Kant's formulation of the moral law as involving duties to self as well as to others is a conception of human nature that goes all the way back to St. Thomas Aquinas and to Aristotle. Thus, we must have moral respect, not just for the will of other persons, but for human nature as embodied both in other persons and in ourselves. This is a normative conception that posits substantial duties -- as in fact we have seen above with duties not to contravene "self-love" as self-preservation and to develop our "talents," where both kinds of duties involvement judgments about the essential purposes (Aristotelian "entelechies") of our faculties or even feelings. Thus, the notion that homosexuality or sodomy was unnatural and a crime against nature was the basis of secular laws against these practices (so that the law therefore did not need to invoke Biblical prohibitions). This is also what we see in Thomist conceptions of natural law, whose conservatism is at odds with Enlightenment versions of natural law and natural rights.

Even if Kant is drawing on an originally Aristotelian and potentially conservative view of human nature, the context of his own thought is the Enlightenment, the aftermath of the liberalism launched by John Locke and the American Revolution, and the metaphysical structure of Kant's own philosophy. It is difficult for Kant to have as full a conception of human nature as Aristotle or St. Thomas when our knowledge in Kant's own Critical Philosophy is limited to the world of appearances. The true content of human nature is hidden among things in themselves. What we do know of human nature, and what is of theoretical and moral significance to Kant, is that we are rational beings. This is much more abstract and limited in comparison to the Aristotelian conceptions. Indeed, Locke himself, in speaking of the "Law of Nature" said, "Reason, which is that Law."

In this way, Locke and Kant focus on one feature of human existence as being of moral significance. Respect for the rational nature of persons makes it a matter of inference and so dispute whether things like homosexuality or sodomy would be crimes against that nature. We must ask exactly what it is about rationality that might be offended by such practices. An Aristotelian argument that all sexual practices or preferences must serve the end of reproduction, which presupposes the axiom that there is a purpose to human sexuality that is limited to such an end, is not obviously the only possible construction of "rationality," even as it does not involve the only possible construction of the purposes of human sexuality. At the same time, Kant believes that an essential feature of rationality is its "legislative" and rule-making powers, i.e. its moral autonomy. If we then posit that moral respect is owed to rational autonomy, this leads us very close indeed to the respect for the will of others that I have posited and away from a conception that provides a place for duties to self. Thus, as Locke and Kant have already drifted a good way from a full Aristotelian conception of human nature, we need merely nudge things a bit further, beyond the point where conservative, paternalistic, or illiberal interpretations can be put on natural law principles.

Where a more abstract conception of human nature as rational being would serve Kant well in the development of his thought, he unfortunately manages to invoke it in such a way that serves to further confuse and damage his system of morality. Thus, earlier in the Foundations than the passages I have just been considering, Kant refers to "another and far more worthy purpose of their existence for which, instead of happiness, their reason is properly intended, this purpose therefore, being the supreme condition to which the private purposes of men must for the most part defer" [Beck, p.12]. We are not clearly given here what this "more worthy purpose," viel würdigern Absicht, is going to be. Kant seems to save that for the culmination of the Foundations. It will not be surprising, however, to learn that the proper end of rational purpose will be the rational nature itself:  "Rational nature is distinguished from other in that it proposes an end to itself. This end would be the material of every good will" [Beck, p.56]. Thus:

In this way, a world of rational beings (mundus intelligibilis) is possible as a realm of ends, because of the legislation belonging to all persons as members [Beck, p.57] -- Nun ist auf solche Weise eine Welt vernünftiger Wesen (mundus intelligibilis) als ein Reich der Zwecke möglich und zwar durch die eigene Gesetzgebung aller Personen als Glieder. [p.438]

This provides for another reformulation of the moral law, in terms of the Reich der Zwecke, "Kingdom of Ends":

Act according to the maxims of a universal legislative member of a merely potential realm of ends... [Beck, p.57] -- handle nach Maximen eines allgemein gesetzgebenden Gliedes zu einem bloß möglichen Reiche der Zwecke... [p.439]

We thus find the ultimate paradox of Kant's ethics. We are expected to legislate for the mundus intelligibilis, whose nature, conditions, and objects are of course hidden from our knowledge. It is not the mundus in which we live. That is in fact the phenomenal world where our goals are naturally those of happiness or other mundane works. But, to Kant, happiness, or any other mundane well being, is in comparison irrational, obscure, and unworthy, an artifact of conditions of existence that are not the home of our true, rational nature. So we properly only have purposes for something that is actually unrelated and impossible in relation to the actual venue of human life. So these are not practical rules at all, if we mean by "practical" something related to the actual goals and purposes we have within human life.

It is really not that difficult, however, to put Kant's principles in the proper perspective. Morality, in terms that would have been familiar and agreeable to Kant in the first Critique, is a conditio sine qua non, a "condition without which not," a necessary condition, to value. It is not, in the first instance, a goal or purpose at all, but the moral condition of other goals. Kant has difficulty with this because "other goals" for him always mean the sensuous temptations and distractions of a Fallen, phenomenal world. They drag us down from the mundus intelligibilis, our true home, into, well, Hell. Kant, who was no proper Christian, nevertheless preserves here a strong and harsh Christian sensibility. He conspicuously excludes something that would have been obvious to Plato or Aristotle:  There are goods in the world, goods that are not just the deceptions of Satan (which is the vibe we get from Kant, even if he doesn't say so).

Kant's ethics, built upon duty and action, is simply missing the Good, which provides the value of those goals for which action exists. This leaves human life without substantive purpose. Kant substitutes something that is actually Sisyphean -- the endless task of perfecting our duty. We find in the Critique of Practical Reason that this is no less than Kant's argument for immorality as a "Postulate of Practical Reason" -- we need eternity in order to meet the categorical moral requirement of perfection -- one of the most clearly Christian moments in Kant, since it was Jesus who said, "Be ye therefore perfect, even as your Father which is in heaven is perfect" [Matthew 5:48]. The only truly worthy kind of happiness, as a goal of human life, is deferred to the Hereafter, as we learn in the second Critique again that our endless struggle for moral perfection will make us worthy of happiness -- which it is our hope that God (another Postulate of Practical Reason) will provide. Thus, the Kingdom of Ends, which in this world provides us with no more than the formal goal of moral duty, will contain a substantive and material fulfillment of our existence once we are ourselves translated into the mundus intelligibilis after death. This is a point where Kant's dualism, so often helpful and illuminating, has shot off into serious error -- an error corrected by the Friesian critique of moralism.

In the mature thought of the Foundations and the second Critique, Kant held that the only truly good thing is good will, and the only truly pure motive for moral action is the rational determination of duty. A younger Kant, however, in his Observations on the Feeling of the Beautiful and Sublime (1764), was aware that people have various motives for good actions, not all of them unworthy. This is examined in more detail elsewhere, as an example of a typology of temperament.

Using the ancient theory of the four humors, Kant distinguished those who act out of principle (the melancholic), those who act out of goodhearted impulse (the sanguine), those who act with their honor and reputation in mind (the choleric), and those who act out of self-interested prudence (the phlegmatic). While reputation may often be a matter of self-interest, those who worry about their honor often act in irrational, foolish, and imprudent ways (one thinks of Don Quixote). Those who act from goodhearted impulse may err through being too credulous and overly trusting. For the mature Kant, all the motives but the first fall short morally, since goodhearted impulse is not a matter of will and determination but of feelings that may be accidential and irrational, appearances of honor may have no moral or prudential connection at all, and self-interested prudence may reject immoral action as merely inexpedient -- or embrace it as the opposite. What the mature Kant seems less aware of is that those who act from principle may be embracing the wrong principle, by which, as has been truly said, the path to Hell is paved with good intentions. The younger Kant was clearly aware of this:

Among men there are but few who behave according to principles -- which is extremely good, as it can so easily happen that one errs in these principles, and then the resulting disadvantage extends all the further, the more universal the principle and the more resolute the person who has set it before himself. [Observations on the Feeling of the Beautiful and Sublime, translated by John T. Goldthwait, University of California Press, 1960, p.74 boldface added]

Rationality, if deceived into embracing vast and impressive but fallacious theorizations (e.g. Marxism), can produce a magnitude of evils far beyond the errors of the goodhearted, the proud, or even the covetous.

What we might expect from a fully rounded human being is elements of all -- a consciousness of principle, goodhearted feeling, an awareness of appearances, and a healthy and prudent sense of self-interest. The possible errors of one are thus checked and balanced by the others. Thus, the person who, out of principle, might believe in the extermination of kulaks (the prosperous peasants murdered by Stalin), could ideally be restrained by compassion and sympathy. Certainly, those who robbed and murdered the kulaks can be condemned as unfeeling, as well as evil.

Thus, if we ask why someone would not commit a murder, the melancholic answers, "It would be wrong," the sanguine, "I couldn't hurt anyone like that," the choleric, "I would embarrass and dishonor my parents and myself," and the phlegmatic, "I might get caught." The motivation descends from the most purely moral to the least, but it will always be good if each exists and reinforces the others. The younger Kant consequently can be credited with a better sense of human nature, even if the mature Kant was correct that the properly moral motive is that concerning moral principle.

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The Fallacies of Egoism and Altruism,
and the Fundamental Principle of Morality, Note 2

PeTA has had a long running campaign, "I'd rather go naked than wear fur," where they get fashion models and actresses to pose naked to attract attention to their cause -- as with Dominique Swain at right. The shoots for these ads have often themselves been public events, with the press and spectators directly inspecting said nakedness. Attention this certainly does attract. One might wonder about its politically correct propriety, however. Using women's bodies to engage public interest, especially male interest, may not be as bad as commercial advertisements or pornography with naked women, but it does seem to violate the political moralism of the feminist condemnation of using women's bodies for anything irrelevant to female hygenic purposes. Also, this sometimes results in some awkward sequels. As fashion designers have tended to return to the use of fur, some model veterans of the "naked" campaign, like Naomi Campbell, have been spotted sporting such fashions. Nevertheless, this is certainly a more aggreable means of publicizing the animals rights agenda than the assaults of paint throwing and vandalism that have otherwise characterized the movement.

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The Fallacies of Egoism and Altruism,
and the Fundamental Principle of Morality, Note 3

It is noteworthy to see that Buddhism, for instance, did not elevate animals to equality with humans. There is one story in the Buddhist canon where a snake impersonates a human being in order to become a monk. One might think that a snake that was able to do this would thus be a rational being and would qualify for membership in the Order. Not so. When the identity of the snake is found out, the Buddha says to him:

You, verily, are a serpent, and not capable of growth in this Doctrine and Discipline; go you, remain in your state as a serpent, and keep fast-day on the fourteenth, fifteenth, and eighth day of the half-month; thus shall you gain release from your state as a serpent, and quickly become a human being. [Henry Clarke Warren, Buddhism in Translations, Atheneum, 1987, p. 402]

Thus, the best that the snake can hope for is rebirth as a human being. The idea that only human beings can achievement enlightenment and salvation is universal in Indian religions. The Jains, otherwise exemplars of non-violence, vegetarianism, and regard for animals, nevertheless only allow (on a particular interpretation, to be sure) that male human beings can achieve salvation: Women must be reborn as men in order to practice as naked monks. At least, this was the traditional belief -- I would not be surprised to hear it contradicted today. The Buddha himself did not originally allow women into the Sangha, the Buddhist monastic order.

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Crime and Punishment,
Repentance, Restitution, and Atonement

Prospero   Though with their high wrongs I am struck to th' quick,
     Yet, with my nobler reason, 'gainst my fury
     Do I take part. The rarer action is
     In virtue than in vengeance. They, being penitent,
     The sole drift of my purpose doth extend
     Not a frown further.

The Tempest, William Shakespeare, Act 5, Scene 1:25-30


Punish one, warn a hundred.

Chinese saying [Mathews' Chinese-English Dictionary, Harvard, 1972, character #384:1, p.50; John DeFrancis, ABC Chinese-English Comprehensive Dictionary, Hawai'i, 2003, chéngyijingbai, p.109]

Wrongful actions can be trivial or serious, moral or legal, civil or criminal. Breaking a promise may damage or end a friendship, damage or end a marriage, be laughed off, or constitute an actionable breach of contract. Or, according to some philosophers, there are no truly wrongful actions; and someone doing what you don't like simply means that they may need to deal with your displeasure, retaliation, or revenge.

Retribution

Morally, however, there are wrongful actions. And the damage and injustice (injuria) done by them calls for a response, whose nature can be judged with some dispassion. However, there is both variety and disagreement about the nature of the responses that are warranted. A wrongful action that merits punishment or retribution would generally involve such a level of harm and damage to the victim as to be criminal in nature. Civil wrongs generally warrant financial compensation, although some of the assessment may be in the form of "punitive" damages, which are intended as punishment -- although still no more than financial in nature. Wrongs that are "merely" moral in nature have no legal remedy, although religions traditionally envision severe punishments, including torture, in the hereafter for what now look like trivial infractions -- for instance, in Mediaeval Islam, women who have done no more than shown their hair to strangers may endure posthumous torments.

The basic form of retribution is harm (damnum) for harm, with punishment proportional to the crime. The principle of "Eye for eye, tooth for tooth, hand for hand, foot for foot" [Exodus 21:24], while brutal, posits an unambiguous and precise balance, indeed an equivalence, between crime and punishment. The saying is "let the punishment fit the crime"; but without the Biblical equations, it is hard to say how a particular punishment would "fit" a particular crime. While mutilations used to be common in the law in all lands, and have recently returned with the revival of Islamic Law in its harshest forms, otherwise they have declined to some comparable sanction in fines, imprisonment, and "community service" (i.e. slavery) in modern law. Where in England a theft of 5 shillings used to warrant the death penalty, Thomas Jefferson's reform of the Virginia Penal Code posited the death penalty only for murder and treason. In general, it is not a punishment that "fits" crime that is just and appropriate but one that is commensurate and proportional to the crime, i.e. fitting or suitable.

But others have come to regard the very notion of retribution as improper, as we find eloquently expressed by Schopenhauer:

Thus the law and its fulfillment, namely punishment, are directed essentially to the future, not to the past. This distinguishes punishment from revenge, for revenge is motivated simply by what has happened, and hence by the past as such. All retaliation for wrong by inflicting a pain without any object for the future is revenge, and can have no other purpose than consolation for the suffering one has endured by the sight of the suffering one has caused in another. Such a thing is wickedness and cruelty, and cannot be ethically justified. Wrong inflicted on me by someone does not in any way entitle me to inflict wrong on him. Retaliation of evil for evil without any further purpose cannot be justified, either morally or otherwise, by any ground of reason, and the jus talionis, set up as an independent, ultimate principle of the right to punish, is meaningless. Therefore, Kant's theory of punishment as mere requital for requital's sake is a thoroughly groundless and perverse view. [The World as Will and Representation, Volume I, §62, Dover Publications, 1966, E.F.J. Payne translation, p.348, boldface added]

But Schopenhauer is wrong. In the first place, we must consider that the jus talionis is, in the state of nature, the only recourse of justice. Wrong inflicted on me does indeed entitle me to inflict harm on the wrongdoer, unless they are willing to offer compensation. The difference between revenge and justice consists of the proportional nature of the punishment, which it is difficult for a victim to estimate, or whether there has been a wrong at all, which is why John Locke posits that the state of nature is best replaced by a judicial system of dispassionate judgment, to avoid "those Evils, which necessarily follow from Mens being Judges in their own Cases." But the principle that harm and injustice be balanced by a proportional harm of retribution is essential to the moral meaning of punishment. It is not "groundless and perverse"; but Schopenhauer is actually right that this is retrospective, treating an event of the past. The future is something else.

Deterrence

What Schopenhauer is thinking, that punishment has something to do with the future, follows from his own metaphysical determinism. Punishment will cause and deter a wrongdoer, by some kind of distress, pain, or inconvenience, to avoid doing wrong again in the future. Hume agrees in this analysis; and, indeed, punishing a dog, or a child, tends to be with the intention to associate pain with the condemned action, what the Behaviorists will call "negative reinforcement," and so to build a disinclination to engage in that action again, lest the pain be renewed.

An agent who avoids wrongful action, however, merely out of fear of punishment, accrues no moral credit for his reform -- he has become more prudent, at best, not more righteous. Neither a dog nor a child is treated as a rational being, the former because it is not, the latter because it is of infantile capacity. If punishment for adult humans is understood in the same way, then they are regarded in essence as no better than animals. Certainly, this is how some adults must be regarded. But we expect a morally mature adult to recognize that a wrongful action was wrong, to repent, to accept that punishment is merited, and then, by a change of heart, to alter his will and behavior.

These actions require freedom, which Schopenhauer and Hume do not believe that humans possess. Schopenhauer, furthermore, believes that a person's character cannot be changed. On the other hand, Schopenhauer qualifies all this with the belief that denial of the will and renunciation of the world are acts that are an expression of freedom after all and that they provide the foundation for moral consciousness. Since Schopenhauer does not believe that the renunciation of the world is caused, then he actually does not believe that punishment can effect the revolution of consciousness that he believes is necessary for truly moral intentions. Morality requires freedom after all.

Punishment as retribution effects something that Schopenhauer, who believes that goodness involves a recognition that the suffering of others is, ontologically, one's own, should understand, namely that the wrongdoer himself suffers the equivalent pain and harm of the victim, whom the wrongdoer has victimized precisely because the victim's suffering is meaningless to him. If this helps the wrongdoer understand the suffering of the victim, then, for a rational being, the wrongdoer is in a better position to understand what is evil about his actions, and repent of them. It embodies the principle of Matthew 7:2, "For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again."

The moral weakness of the doctrine of penal deterrence consists in its independence of the principle of just proportionality. For deterrence is only a means to an end, not an end in itself. If the death penalty is what is necessary to deter thefts of five shillings, then this punishment is logical and appropriate. We see how bad this can get in laws concerning mala prohibita, which sanction no natural wrongs and for which there is no naturally proportionate punishment. Thus, historically we find many cases of punishment for those in possession of drugs being far more severe than for those guilty of murder -- as even in 2014, 19-year-old Jacob Lavoro of Round Rock, Texas is threatened with a life sentence for brownies he baked with hashish oil, turning a trivial charge into a major felony by counting the entire weight of the brownies as the weight of drugs. There is no rational or moral reason for such charges. The occurrence of such things, based on Schopenhauer's own principle of deterrence, is enough to show that such a principle itself leads easily to "wickedness and cruelty." Edward Gibbon said, "Whenever the offense inspires less horror than the punishment, the rigor of penal law is obliged to give way to the common feelings of mankind." But it isn't just a matter of "common feelings" but of principles of justice, such as proportionality, that can easily be identified.

A further problem with deterrence is that its effect does not even need to be directed towards the wrongdoer. Indeed, historically this may be the principal goal of deterrence, as we even see reflected in the Chinese saying, , "Punish one, warn a hundred." Public executions, often involving grisly tortures and mutilations, were formerly popular both East and West, certainly with the understanding that the spectacle was morally edifying for the spectators, both to demonstrate justice done and to caution possible wrongdoers. And if what politicians say is to be taken seriously, the purpose of a law may not be to affect (and effect) the future behavior of a known perpetrator at all but rather to "set an example" or "send a message" that will impress, alarm, and deter others who may contemplate similar actions. In such terms, punishment is again only a means to an end, and an example made of the wrongdoer pour encourager les autres (as Voltaire put it in the case of the execution of poor Admiral Byng) must be sufficiently exemplary to effect this purpose. Thus, if we find that only the crucifixion of a petty thief will effectively deter such crime, there can be on these terms no objection against it.

The twisted logic of drug laws follows these lines. (Some) drugs come to be outlawed in that they can be or are harmful, that people must be protected from irresistible drug dealers, and that many citizens, presumably, cannot avoid addiction and must be protected from themselves. Such helpless citizens, however, in the hopeless grip of addiction, would seem to be victims, who consequently cannot be morally blamed for a "crime" in which the harm is suffered only by them. Again, however, to listen to politicians, the drug laws must "send a message" by destroying the lives of addicts, either through long imprisonment or the disabilities of a criminal record. Their exemplary punishment, perhaps doing far greater harm to them than their drug use has ever done, will frighten others, especially the young, away from drug use. And even if this strikes some people as unjust, that supposedly for their own good we ruin the lives of drug users, the explicit response is often that this is done to protect society, in which case draconian penalties visited on criminalized victims are simply a kind of collateral damage.

Of course, the purpose of justice is not to send messages. It is to institute right and punish wrong. The sacrifice of drug users, who supposedly are unable to judge what is best for them and to regulate their own lives accordingly, on the altar of "society," which presumably means to terrify others from judging what is best for them and regulating their own lives accordingly, is in fact the very tissue of injustice and also of tyranny and goes far beyond the point of what Schopenhauer considered "wickedness and cruelty." Indeed, one may be left with the impression that the drug laws are simply the vindictive revenge of people drunk with power whose concern is not about justice or righteousness, or the good of the citizens, but who wish to make examples of those who will not obey for no better purpose than to display their authority and frighten citizens into obedience. These are not the values of liberal democracy, yet such politicians continue to be elected. Germans feared the midnight knock of the Gestapo; but thanks to the "War on Drugs," the modern SWAT team goes in, in fully military equipment, without knocking, in the wee hours of the morning. And they always shoot your dog. This is a disgrace, and it warrants outrage, which nevertheless we generally do not hear.

Even worse, however, is what happens with the recent popularity of strict liability criminal law among trendy jurists and politicians. Coupled with the abuse of mala prohibita, this produces a Perfect Storm of injustice. For strict liability, as it happens, means that the knowledge, intentions, and motives of the agent, the legal mens rea, are entirely irrelevant to guilt. After carefully building up deterrence as the justification of punishment, this device absolutely voids and destroys it:  a person who does not know they are doing a wrongful act cannot be deterred from doing it by any threat of punishment for something that seems irrelevant. Similarly, anyone who does not know they are doing wrong or breaking a law will be unaware and unconcerned about any "message" that the law is supposed to be sending, or about the exemplary punishment in store for them. Sending a "message" or making an "example" of someone will be entirely ineffective by an epistemological certainty. We even know that taxpayers inquirying of the IRS about the legality of their deductions, etc., are nevertheless still held liable, perhaps even criminally liable, even if the IRS gives them a wrong answer which the taxpayer has followed in good faith. The lack of good faith is clearly to be found elsewhere -- in a political and legal culture that wishes the power of government to be irresponsible and unaccountable in every traditional moral and legal sense. Kaftka's The Trial (Der Proceß, 1925) is not just a nightmare fantasy, it is the plan and ideal of arbitrary and autocratic authority. The combination of strict liability and draconian punishments for mala prohibita reveals the dishonesty, corruption, and malevolence of its advocates and enforcers.

Rehabilitation

As with deterrence, another modern principle popularly expected to replace retribution is "rehabilitation." This may replace punishment altogether, with the "negative reinforcement" of deterrence translated into the "positive reinforcement" of psychological therapy, counseling, and vocational training. After all, people who believe in rehabilitation tend to think that all punishment is barbaric and that crime only occurs because of the lack of economic opportunity and the presence of discrimination, racism, and other ills that are the fault of society, not of any actual criminal. In other words, the criminal has been made that way by society; it's not his fault; and all he needs is to get straightened out, set on the right path, given opportunity and his share of the communal pie, and all will be well.

In the heyday of these ideas, in the '60's, offenders might be given "indeterminate" sentences; for, as with deterrence, prison is only a means to an end. If it takes decades to rehabilitate a petty thief, then that is what is necessary and no one has cause for compliant. The thief is not being punished. Nothing so barbaric. But we can't let him go until he is ready. His therapy just hasn't yet taken.

Thus, rehabilitation suffers from the same evil and unjust drawback as deterrence. It results in measures that may not be proportional to the offense, and in which proportionality is not even a consideration. And since the program of psychological therapy and vocational training is based on false assumptions, and in practice the approach has proven incapable of producing anything like the expected results, the idea of prison as "rehabilitation" has as a practical matter been abandoned, even if attempts may nevertheless be made to provide some psychological and vocational services.

In the 19th century, the idea of rehabilitation was also attempted, with a more recognizably religious paradigm in mind. The "Pennsylvania System" (named after the 1829 Eastern State Penitentiary in Philadelphia) kept prisoners in solitary, silent, and anonymous confinement, as the equivalent of monastic penitents (hence "penitentiary"), for them to reflect on their crimes and reform through repentance. They tended to go insane instead. Such prisons still exist, such as the infamous Pelican Bay State Prison of California; but the prisoners are isolated there only because they proved too violent to be housed with other prisoners. Their isolation thus has no moral purpose; and if the confinement drives them insane, perhaps they were already -- in any case, there is not much else that can be done about it.

Morally, we hope that wrongdoers will repent and reform. As Schopenhauer says, this looks to the future and promises something better both for the convicted and for the rest of society around them. But justice cannot demand repentance. The unrepentant may be punished more harshly, and "career criminals" will warrant increasing penalties for repeat offenses, but retribution looks to what has been done, not to attempts to engineer humans like animals or robots to behave differently.

Restitution

But there is more to the matter than punishment as retribution. Wrongdoers do owe a debt to their victims, and restitution can be demanded, often through civil proceedings separate from criminal prosecutions. Restitution or reparations involve the principle of trying to undo harm and restore things to their previous state. If possible, we would like to rectify the circumstances and consequences of the wrong. As the concepts of deterrence and rehabilitation have become less popular, or discredited, an equally misconceived movement has arisen in their place, that the old barbaric conceptions of punishment and retribution are now to be replaced by "restorative justice," in which the wound of crime will be set right and all will be as it was.

The foolishness of this follows from the fact that with many, if not most, crimes, things cannot simply be restored to their previous state. Murder victims do not come back to life. The trauma of rape or assault cannot be undone. And victims who survive crime often want nothing to do even with criminals who sincerely repent and want, as much as possible, to undo what they have done. The "restorative justice" movement is therefore simply the most recent effort to avoid the blunt, judgmental barbarity, as they see it, of retributive justice. And, like deterrence and rehabilitation, what is the limit for effective restoration? Since murder can never be undone, and no restitution can ever really compensate for the crime, the only measure remotely equal to the offense that would provide some recompense to surviving victims, which neither the death penalty nor life in prison can do, would be the second form of capital punishment under Roman law, namely slavery:  the criminal becomes the chattel slave of the victims or their relatives.

I very much doubt, however, that anyone who scruples to accept the retributive theory of penal justice would find slavery an acceptable expedient. Instead, this argument functions more as a reductio ad absurdum of "restorative justice," and we must recognize that, while restitution and reparation are certainly features of the debt that wrongdoers owe to their victims, nothing of the sort is at the heart of criminal justice -- which is perhaps why civil procedures for damages follow the criminal trial, and may even be successful, as in the O.J. Simpson case, where the criminal case was not. Even the criminal who can restore everything to the victim, such as in a burglary, has not therefore discharged what is owing from the crime. "I'm sorry; here's your stuff back," is not punishment and does not address the circumstance that a criminal wrong has been performed. The wrong itself is the offense, not the loss to the victim, even if that loss is the reason for the wrong. Whether the loss can ever be made good, or to what extent, is irrelevant to the issue of punishment -- except that the repentance of the criminal, and his ability to restore the loss, may stand as a mitigating factor in the sentencing.

Penance

In the history of ethics, the quality of a moral wrong has not always been the issue in wrongful actions. When Heracles kills his wife Megara and their children, he is not morally culpable, since he has been driven temporarily insane by the goddess Hera and is not responsible for his actions. Yet he must perform penance for the killing. As Euthyphro tells Socrates, "The pollution is the same." In other words, the spilling of blood is polluting, regardless of the reasons for its being spilled. It does not make Heracles a bad person even though he must then do something to expiate his (morally innocent) action. The parallel is certainly with all other kinds of soilings and stains. You spill coffee on your clothes, and they need cleaning, period, regardless of why the coffee got spilled.

The case of Euthyphro himself is instructive. A servant has killed a family slave. Euthyphro's father binds the servant and throws him in a ditch, while someone is sent to ascertain from a priest what is to be done. There are no police to call at the time, and even murder cases may only be matters of private legal action. There is a delay, and in the meantime the servant dies from exposure in the ditch. Euthyphro is prosecuting his father. The father is perhaps guilty of some kind of negligent homicide; but then the servant may have deserved to die in any case, and the father has broken no laws, in which there are no rules or protections for murder suspects. But in the dialogue, this is not the principal difficulty with Euthyphro's case. While piety requires action about the pollution of the death, Socrates is well aware that legal action against his own father is a major act of impiety in its own right. Euthyphro seems insensible of this, asserting that "the pollution is the same" whether the killer is his father or anyone else. Yet we even find in Confucius the principle that a father should cover up for his son, and a son for his father (Analects 13:18). And "Honour thy father and thy mother" (Exodus 20:12) is not just a recommendation to be nice, it is a Commandment and a religious duty. Within living memory, children disobeying or speaking back to their parents was shocking behavior. To disobey is not just wrong, it is a sin. Now, of course, children threaten to call Child Protective Services if they don't get their way.

Historically, in morality we see the language of pollution replaced by a more legalistic moral language. Generally, this seems reasonable, and there is no alternative for it in a philosopher like Kant, who acknowledges no modality of religious judgment apart from moral judgment. There are two noteworthy difficulties with this trend. One is that the tradition of skeptical inquiry that tended to doubt and erase the basis of religious categories of judgment (such as pollution) continued on to doubt and erase, often on the basis of a conceptually flawed materialism, the basis of moral judgment also. So nothing is left, and we are free to view ethics as the clash of Nietzschean centers of power. We certainly cannot expect any understanding of the metaphysics or epistemology of religious judgment if we are lacking even such understanding for morality.

On the other hand, the replacement of religious categories with moral ones has produced a curious situation in Christian theology. This may be of no interest to persons outside Christianity, but it has larger implications. The Christian conundrum is that the promise of the religion is that sin is forgiven because of the sacrifice of Jesus on the Cross. Yet this obviously has had no effect on the administration of secular penal justice in the Christian world. Murderers who suddenly repent and are saved by Christ are not therefore forgiven by any judge. They are still subject to secular penalties, sometimes harsh ones. A judge who vacated a sentence because the defendant had found religion and repented of his deed would be the object of outrage and protest. When defendants assert their salvation in that way, the public impression is often that they are insolent and unrepentant. The genuinely repentant person characteristically acknowledges his guilt and accepts his punishment. His hope is for a better state in the hereafter, as well as to do the good that he can, even in prison.

Early Christianity was a little unclear about the separation between moral and soteriological issues. Sin merited Hell, and initially only baptism truly cleansed one of sin -- hence end-of-life conversions and baptisms like that of the Emperor Constantine. Later, with routine baptisms at earlier ages, even infancy, damnation from subsequent sin became a worry, and the idea grew that penance, even when practiced by others on one's behalf, could erase sin and open the way to Heaven. But for a while, penitents might be denied Communion until their penance was discharged. And there was controversy over whether and how much the sinful dead could be helped by penance, their own or other's, and intercession by Saints, Masses, and prayer.

Absolution

In the end, the Catholic Church struck a compromise. Someone could be Confessed and absolved of sin on the spot, and receive Communion, but then be obliged to carry out what might only be, for minor sins, a nominal form of penance. This mirrored the situation in the hereafter, where those saved by Faith and Repentance were assured of salvation, but might need to undergo the purifications of Purgatory. This sharply separated the moral issue, which was forgiveness, from the religious issues of salvation, which is assured for the believer, and pollution, which must be purified.

Protestants do not accept the mechanism of confession, absolution, and penance, or the need for Purgatory. One receives and maintains purity by faith. This is consistent neither with the worries of the early Church, where sin was damning, nor with respect for the gravity of crime, which seems to be trivialized by the teaching. But Protestants also have a logical objection. The Catholics are trying to have it both ways, with the forgiveness of sin but then a sort of penitential punishment nevertheless. They might, like Euthyphro, say that "the pollution is the same," but then pollution is not really part of Christian doctrine -- although the Old Testament and Orthodox Judaism are full of issues and practices addressing pollution.

This difficulty is not unique to Christianity. Pure Land Buddhism promises birth in the Paradise of the Buddha Amitâbha for everyone, regardless of sin. The Buddhist Hells are certainly no more inviting than any Christian Hell. So is all sin forgiven in the Pure Land? Not exactly. One is born in a lotus blossom, whose opening depends on one's merit. The sinful find themselves in the lotus for a long time, perhaps kalpas. This is better than the torture of the Buddhist Hells, but it begins to sound like the solitary penance of the Eastern State Penitentiary, which may qualify as torture in its own right.

So what does this mean? Is the religious dimension here simply superfluous to the moral dimension? Is there a duplication that we can eliminate? Or is the soteriological side of the religious dimension something that is unrelated to the moral? Or perhaps the older religious system of pollution is inessential to the soteriology of religions like Christianity, Islam, or Buddhism?

Expiation

I think that there is a strong sense that Catholic theology wants to have its cake and eat it too; but there is a good reason for this. The requirements of justice do not include confession or repentance. You do the crime, do the time, and then you are even, regardless of your state of mind or intentions. This is because, as I have considered elsewhere, justice begins with the actus reus, the wrongful thing that has been done. Morality begins with the intention, the mens rea, and, as Kant appreciated, this constitutes the entire moral quality of the action. The path to Hell may be paved with good intentions, but, except for negligence, no one can be faulted for meaning to do what is right, however confused, deceived, ignorant, or stupid they may be.

Thus, while punishment may discharge the crime from the point of view of justice, the moral quality of malevolence (ill will) remains in the unrepentant criminal. On the one hand, nothing changes if the criminal subsequently repents and experiences a change of heart. He has simply become within a better person who will not wish to do wrong in the future. On the other hand, it should not be that easy. The criminal may have done the time; but, as Socrates said, his accuser Meletus was "doing himself much greater harm... attempting to have a man executed unjustly" [Apology 30d]. What harm could he be doing to himself? That is where sin is more than a wrong. The criminal who comes late to repentance understands that the punishment he already endured does not end the matter, because it does not address the inner failing of his malevolent moral intention. That can only be addressed by expiation, which implies that "sin" is a combination of "wrong + pollution." The wrong requires punishment. The pollution requires atonement and penance.

In this construction, we do not get any duplication and nothing is superfluous. Morality and religion maintain separate spheres, separate categories of value, and distinct purposes. But they are related and connected. What punishment is to the actus, expiation is to the mens; and as a matter of practice, the Catholic Church leaves the former to the civil authorities, while the latter is the business of the Confessor. And the Confessor does not say, "you've done your time and therefore are now square with God." No. Nor is the repentant criminal confessed and absolved without further measures. There will still be penance, which can take many forms, through prayer or even through good works. After all, the latter are a test of sincerity and a demonstration of what good action is like. The former criminal may be relatively unfamiliar with both.

Note that this rather shifts the ground since the penance of Heracles. The pollution there, as in Greek religion in general, was in the act. It is precisely because of the moral innocence of Heracles that his penance is now hard to understand. The ancient construction of the issue seems confused. But then we might now say that it is simply undeveloped or unevolved. It is precisely in the historical development of morality that the importance of intention has become appreciated. Nor is this achievement always a permanent point of progress -- the corrupt and vicious practice of "strict liability" criminal law, where the mens rea is discounted, has recently become popular among the unprincipled, venal, and opportunistic careerists of modern law (insert lawyer joke here).

It is also noteworthy that soteriological considerations remain distinct from those both of morality and of expiation. Greek religion, which before the Eleusian Mysteries had no doctrine of personal salvation or a blessed hereafter, nevertheless had its categories, as we have seen, of pollution and expiation. In Christianity, salvation is another factor added into the mix. Repent and you are Saved, according to the promise of Christ. While we may look at this as the forgiveness of eternal punishment, another perspective is possible. The background of the Mystery religions, which includes Christianity, is not against punishment for sin but against the miserable shadow existence of the dead described in the Epic of Gilgamesh and the Odyssey. Of course, in the modern world, people may be less worried about Hades or Sheol than about the nothingness promised (or threatened) by materialism. It is now hard to imagine any kind of post-mortem existence, even that of a Homeric shadow, without understanding that this means there is a post-mortem existence. Thus, the promise of a hereafter is principally a reassurance that there will be something rather than nothing.

Forgiveness

Why would God, or a Buddha, or anybody, forgive anyone for anything? Forgiveness of sin, crime, or debt means that the punishment or the assessment involved in the sin, crime, or debt is erased and abolished. The sinner is not sent to Hell; the criminal is not sent to jail or executed -- or he is released from jail or pardoned -- and the debtor becomes free of debt. In personal relationships, forgiveness means a falling out may be healed and anger or bad feelings disappear. If someone is genuinely forgiven, even love may be restored from estrangement and hatred. This works better in some cases than in others.

There is a significant difference between forgiveness with, and because of, repentance and forgivness without it. Christian theology requires repentance for the remission of sins. Relying on the Vow of Amida may imply repentance, but that is not explicit or necessary. The magnanimous ruler may forgive debts and crimes, as a display of mercy and power, without repentance -- he may not care about the damage or injustice such forgiveness may have on small scales. Forgiveness at a personal level generally requires repentance, which is also a desire to be forgiven. Indeed, unless someone wants to be forgiven, in order to heal a relationship, there is not much point in forgiving them.

Christians may feel obligated to forgive even where there is no repentance. This may be understood to be enjoined by a famous passage:

Avenge not yourselves, beloved, but give place unto wrath: for it is written, Vengeance is mine; I will repay, saith the Lord. [Romans 12:19]

The Christian consequently can forgive because the unrepentant will be justly dealt with by God, and because forgiveness is a manifestation of a letting go that signifies and embodies a release from worldly affairs. In Buddhist terms, it gains freedom from attachment. The Christian may think that forgiveness is required as a display of Christian love, but then God, who is supreme Love, only forgives if there is repentance. So Christian forgiveness is best understood as achieving distance from the world and its problems and a preparation for the Hereafter.

An excellent example of this is in The Tempest, expressed by the statement of Prospero in the epigraph to this essay. Prospero forgives the repentant King Alonso, who appears to be worthy of it. But he also forgives his own brother Antonio and Alonso's brother Sebastian, even though they do not evidently repent and are not worthy of forgiveness -- even as Prospero specifies, "They, being penitent," as the condition of his forgiveness. If it were indeed "virtue" to forgive the unrepentant, he might at least say so. But he does not. So why is Prospero careless about this? I think that what explains it is the same reason that his vengeance is so easily limited in the first place, a realization of the vanity and insubstantial nature of the world. He forgives Antonio and Sebastian because they are neutralized and he no longer cares. He has prepared for the future of the others, including his daughter Miranda, and now is only faced with the contemplation of death. With little or no overt Christianity in the play, its theme could be as Buddhist as Christian.

Another example of virtue and detachment, with dramatic consequences, is in Victor Hugo's Les Misérables [1862]. Jean Valjean, the paroled convict whom I have considered under the question of moral dilemmas, is taken in by the kindly Bishop of Digne, Charles-François-Bienvenu Myriel. Bitter and corrupted over his fate, Valjean steals much of the Bishop's silverware and runs away. The police catch him with the suspicious haul and guess that it belongs to the Bishop. Confronted with the criminal, however, the Bishop asserts that the silver was a gift, and he adds silver candlesticks for good measure. Although Valjean is not immediately reformed by this, and soon commits another robbery, his conscience soon triumphs and his heart is changed. The Bishop, of course, by his lack of concern for the episcopal silver and his insight into Valjean's potential, thus has used forgiveness to effect the moral reform and conversion of the man who otherwise was headed directly for a life of crime and imprisonment. Hugo's own son, a staunch French anti-clericalist, complained that this made a Churchman look too good; but Hugo had based the character on the real Bishop of Digne, François-Melchior-Charles-Bienvenu de Miollis (1753-1843).

So why does God forgive? The standard Christian theology is that we are helpless and hopeless in our sin, and so God takes pity and offers redemption. Similarly, the Buddha Amitâbha acts out of compassion in a world of intrinsic suffering. On the other hand, God is responsible for the world, as its Creator, as no Buddha is; and so Christian theology is complicated by the Problem of Evil. The creative answer to that is Jung's Answer to Job, where the imperfections of the world and ourselves are indeed the responsibility of God and reveal his own imperfection. In those terms, God owes us redemption. He should have known better and can make himself better as we can be saved through repentance. In either case, consciousness of sin enables us to achieve salvation.

Adam and Eve

If Heracles was required to expiate a sin for which he was not morally responsible, we have a similar problem in the Bible. Adam, , and Eve, , are expelled from the Garden of Eden for disobeying God and eating of the Tree of Knowledge of Good and Evil [Genesis 3:24]. God had forbidden Adam to eat of that Tree, lest he die [Genesis 2:17]. There was another special tree in the Garden, the Tree of Life [Genesis 2:9]. God does not explicitly forbid eating of this tree; but he seems to fear that, having eaten of the one, Adam and Eve will eat of the other, "and live for ever" [Genesis 3:22]. Although he does not follow through with the threat to kill those who have disobeyed, this is the reason why he drives them out of Eden [Genesis 3:23].

This is a curious story. God commands Adam not to eat the fruit of the tree, but he does not pause to reflect that Adam, ignorant of good and evil, will necessarily not know that disobeying God is an evil. Only after eating will Adam and Eve know that disobedience was wrong, if it was -- for, indeed, this puts us back at the problem of the Euthyphro, whether the will of the gods alone is sufficient to establish what is good. What was wrongful about acquiring knowledge of good and evil? What God seems to fear is his own loss of status:  "the man has become like one of us, knowing good and evil" [Genesis 3:22]. The principal effect for them of gaining this knowledge simply seems to be that they become aware of their nakedness [Genesis 3:7] and become fearful of being seen naked [Genesis 3:10].

We are left to conclude that knowledge of good and evil together with eternal life are the attributes of divinity (the terms of which Socrates changed with the Greek gods), neither of which God intended to bestow on Adam and Eve. Having stolen one of them, they are prevented from getting the other. So why put the trees in the Garden in the first place? Even better, why did God create nudity and make it, apparently, shameful, when Adam and Eve would not be aware of their nakedness and hide from God? It sounds like God enjoyed looking at Adam and Eve -- they were, after all, "good" -- but didn't want them realizing what he was doing. That sounds like a voyeur inspecting the innocent.

Be that as it may, the relevance for the discussion here is the nature of the sin without the mens rea. Having, we might say, "objectively" sinned, Adam and Eve have earned punishment. Yet the punishment is not an expiation. By suffering from work and childbirth, the man and woman will not, after all, work off their sin. They have Fallen. This is a much harsher reality than what was faced by Heracles. Indeed, the ultimate reward for Heracles for all his own suffering is deification. The God of Genesis makes no such provision.

Indeed, it is much worse. The curse visited upon Adam and Eve applies to all their decendants in perpetuity. This is way harsh. Not everyone likes the idea of "original sin," and it is also pointed out that in Judaism itself there is the atonement for sin every year, on Yom Kippur. However, the Day of Atonement does not restore anyone to Eden, nor does it raise any part of the curses that God laid on Adam and Eve. We continue in our Fallen state. Despite popular Jewish beliefs about the afterlife or the Messiah, Rabbinical Judaism seems to have no formal doctrine that the Fall will ever be undone. Indeed, secular Jews often make a virtue of this, holding that it is to the credit of Judaism that it is about "this life" and is not otherworldly like, say, Christianity. Unfortunately, the desire to "improve the world" has often then put secular Jews in league with forces of actual tyranny and oppression -- all the fine promises of socialism, communism, and the welfare state, which in the end only serve to enrich a professional and political class of rent seekers. Since these people are usually pretty pleased with themselves, they usually don't even recognize the damage that they have done -- the bane of American politics.

But this lets God off too easy. Adam and Eve and most of their descendants are morally blameless. As we have seen, the events of Eden and the subsequent suffering of the world look more like the responsibility of God himself. Thus, whether or not the Fall is "original sin" or something else, God owes humanity a means of salvation. To undo the Fall altogether was then the ambition of Christianity. Baptism restored one to Edenic innocence; and, as I have recounted, the subsequent problem of dealing with post-baptismal sin has been addressed in different ways by Christian tradition. But in whatever way it was accomplished, the expiation of sin, whether by faith or by penance, again qualifies one to leave the conditions of this world and find eternal life and bliss in Heaven. After the Last Judgment, the world itself either will be abolished or will be restored to its Edenic state.

A remaining puzzle about Eden is sex. Adam did not "know" Eve and cause her to conceive until after they were out of the Garden [Genesis 4:1]. This could be interpreted to mean that there had been no sex in the Garden and so no possibility of Eve conceiving. However, when God curses Eve, he says that he will "increase" her pain in childbirth. The verb for "increase," râbhâh, , is actually used twice, as a verbal noun and in the finite form [Genesis 3:16; in the Septuagint Greek it is with a participle and then the verb, "increasing I increase"]. This is awkward to translate, so we get "I will greatly increase" or "greatly multiply" the pain. The implication, however, is that there already was going to be conception and childbirth, as we would expect from human physiology, and that the natural course of this was derailed by the Fall. If Adam and Eve were unaware that they were naked, like animals, then we can imagine that, like animals, they would have engaged in sex without having any particular worries or reservations about it. The shame came later -- although, as I have said, it is not clear why God should have created something that, objectively, would be shameful in the first place. Nevertheless, Christians have often drawn the conclusion from the story of Adam and Eve that sex itself was sinful and that, as Jesus says there will be no marriage in Heaven, this also means that there will be no sex in Heaven. Bummer. On the other hand, we also get the curious but also rare phenomenon of Christian nudists, who believe that, restored to Edenic innocence, then Edenic nudity is the obvious corollary. Be that as it may, we are left with the paradoxes of an Antinomy, that the world at once seems to be "good" but then also a place of hopeless suffering.

When it comes to sex, Christianity as a world-denying religion is bound to have problems. Other religions of asceticism and renunciation, such as Hinduism, Jainism, and Buddhism, also valorize celibacy, although not often with the sense that sex would be inherently sinful. The difference is something already clearly present in Judaism, and in most ancient religion:  sex, like blood, is polluting. Although sin is polluting, the converse is not necessarily the case. Pollution is not always sinful. It is understandable if there should be confusion over this. But if you cut yourself and bleed, or if a woman menstruates, this is not in itself sinful -- although in the classic novel [Stephen King, 1974] and movie [1976] Carrie, Carrie's mother believes that her daughter would not have experienced menarche without sinful (i.e. sexual) thoughts. In multiple ancient religions and in Judaism the pollution of blood or sex is treated by isolation or bathing or other ritual acts, which do not otherwise have any sense of penance about them, although, like penance, their function is to remove pollution. Since Christianity does not have rules about pollution as such, the sense of the pollution of sex is preserved by folding it together with sin and penance. Yet Adam and Eve Fell by eating the fruit of the Tree, not by having sexual or lustful thoughts. Yet this is muddled by the sense that "knowledge of good and evil" should include awareness of the shamefulness of nudity. And that is a paradox inherited from Judaism, not originated by Christianity, which leaves it as a question for both religions.

Adam and Eve in The Origin of Value

Shame, Beauty, and the Ambivalence of the Flesh

The Erotic as an Aesthetic Category

Conclusion

The diagram I have been featuring does not represent the soteriological "direction." Christian salvation is an extra feature of repentance, and so we might imagine this dimension of religious value as intersecting the diagram at right angles to the other directions. It adds conversion to the dynamic of repentance. Nor is any of this unique to Christianity. But it doesn't always work the same way. The Vow of Amitâbha allows the sinner to the born in the Pure Land, but this is not quite Salvation yet. Life and practice in the Pure Land may be expiation, but it is also working out one's salvation through the traditional Buddhist conduct of the Eightfold Way.

Otherwise, the directions in the diagram are closely related by moral considerations. Punishment looks to a wrongful event in the past and in the external world. This is what Schopenhauer didn't like about it. Repentance is an internal transformation that will be in response to the crime or the punishment, but it is inessential to justice and is intrinsically forward and future directed, whether the future means rightful conduct thereafter or is in the face of religious requirements for expiation and/or the means of salvation. The repentant criminal will have a change of heart and of will, to acquire the Kantian "good will," and so subsequently will be, to the best of his ability, a better person.

At the same time, requirements of restitution, which cannot always be fulfilled, are externally directed, towards the victims of crime, with the intention of restoring conditions to their state prior to the crime. This is a requirement of justice and also can be accomplished, if possible, without any repentance or change of heart of the criminal. This is quite the opposite of the harm, as Socrates puts it, that the criminal has done to himself. This is internal, and it is the stain or pollution that his malevolence has inflicted on his own mind, heart, and soul. This may mean absolutely nothing to the unrepentant criminal, or to the materialist or Nietszchean. One must be sensible of wrong and of evil in the first place to worry about it. Having recognized it, repentance and expiation are the only way out. The details of this will be religion specific. Nevertheless, its larger meaning is inescapable, that even punishment and repentance still leave a wrong within to be righted, and atonement is the process of carrying that out.

The Fallacies of Egoism and Altruism, and the Fundamental Principle of Morality

Rights of Sentient and Insentient Beings

Kant's Foundations of the Metaphysics of Morals, Grundlegung zur Metaphysik der Sitten

Ethics

Philosophy of Religion

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Copyright (c) 2012, 2013, 2014 Kelley L. Ross, Ph.D. All Rights Reserved

Non-Contractual Duties of Commission
and Privileges of Necessity

(after Richard Epstein)

I am for doing good to the poor, but I differ in opinion of the means. I think the best way of doing good to the poor, is not making them easy in poverty, but leading or driving them out of it. In my youth I travelled much, and I observed in different countries, that the more public provisions were made for the poor the less they provided for themselves, and of course became poorer. And, on the contrary, the less was done for them, the more they did for themselves, and became richer.

Benjamin Franklin, in "The Encouragement of Idleness," 1766

Of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated, but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.

C.S. Lewis

Contracts imply that some balance, in the informed estimation of the contractors (where that is possible), has been struck between the interests pursued by one in behalf of the other (the goods or services rendered), and those pursued or rendered in return. Since a contract is an exchange of goods, it contrasts with non-contractual duties of commission, which call on the agent to act for the good of others without certainty of recompense, or with privileges (rights, powers) of necessity, which compel another to provide certain goods, but with a positive duty on the beneficiary for later recompense. Normally anyone is free to give supererogatory aid and assistance out of charity and compassion -- goods for nothing in return -- but making this a general obligation, as altruistic moralism does, erases the existence of contracts -- an agreement to exchange goods is hardly necessary when one is obliged to give goods anyway, for nothing in return.

A line therefore must be drawn between goods for others that will only concern us through contractual actions rebounding to our self-interest, and those goods for others that may make demands on us to act out of moral duty for the sake of those others even without expectation of benefit to ourselves. This motivates condition #2 above, that there is an duty where the other is in danger of serious and irreversible harm, the situation where someone would acknowledge their helpless state, perhaps, just by crying, "Help." Such a "help," however, cannot always be taken at face value. Some people may be in need of help without being able to acknowledge it; others may ask for or continue asking for help when they actually are not in need of it -- their helplessness can become a way of using others and so wronging them rather than being responsible for their own self-interest. That helplessness can be real fraud, a deliberate manipulation of others, or it can arise merely from incontinence, which like negligence is a moral weakness or carelessness of will. This is the problem with Marx's principle for the utopian society: "From each according to his ability, to each according to his need"; for according to that principle it is worth the most to each individual to have as little ability and as many needs as possible. Ability is easily concealed -- and many abilities are not even revealed except under stress and real need -- and needs are easily claimed, with any critical response attacked as heartless and selfish. It is a lot easier to claim need rather than exert oneself to develop and apply abilities.

No agent can remedy the moral weakness of will of another except by forcing them to be responsible for their own self-interest -- i.e. by denying aid. (Hence the sentiment of Benjamin Franklin above that the poor become richer when less provision is made for them.) The agent faced with acknowledging non-contractual duties of commission must judge whether the need of the other is genuine, fraudulent, or incontinent. In case of doubt, of course, one must tend to assume genuine helpless need; but a consistently credulous attitude towards need, or a determination that even incontinent need should be answered with charity and compassion, can only aid and abet incontinence. Such charity and compassion can even become morally culpable if they become the means of perpetuating moral helplessness: and the dependency of the helpless thus promoted can validate the moral superiority and self-righteousness of the agent -- i.e. the self-interest of the agent in using the other as a means to moral self-satisfaction and power over others. Thus the agent uses the helpless and wrongs them. It is these issues of competence, incontinence (or negligence), and motivation that result in the complexity of the rule for non-contractual duties of commission.

An important point that results from all this is the right of personal privacy. The denial of altruistic moralism means that the primary business of life is the pursuit of goods for the self, and these are the goods of private life. Public life and public goods only exist in so far as they ultimately serve the goods of private life. Because different things can appear (non-morally) good to different people -- i.e. some people devote their lives to baseball, others to medicine, to art, to charity, etc. -- public life cannot provide directly what everyone wants, since that cannot be predicted or anticipated. Instead each is provided the freedom to (innocently) seek what satisfies them. Altruistic moralism, which makes it our duty to provide personal goods to others, erases the distinction between private and public. That opens personal affairs to public scrutiny and also moralizes them: personal choices become subject to public judgment about their worthiness; and since aesthetic variety cannot be certified in such a way, an anaesthetic and anhedonic condemnation will be lodged against anything not regarded as morally worthy. This is all a move well represented in the slogan, "The personal is political," and it is an important effect, again, of paternalism.

The same effect renders non-contractual duties of commission a category to be carefully constrained and not needlessly expanded: for judging others incompetent and helpless removes their privacy and, so that need can be properly evaluated, opens all their preferences to examination by the intervening agent. That examination will not be moralistic so long as the intervention is directed to establishing (or reëstablishing) autonomy in the helpless other. Indeed, this now gives us a general rule for non-contractual duties of commission:

Just as duties of omission are to avoid violating the autonomy of others, non-contractual duties of commission are solely to establish, preserve, or reëstablish that very autonomy, so long as the agent is able to do so and his own autonomy or preëxisting duties are not disproportionately compromised -- which is to say that contractual duties of commission, if involving necessities, have priority over non-contractual duties of commission.

Duties of omission are to respect privacy, while duties of commission, although violating privacy, view this only as a necessary evil which all efforts must directed towards remedying. Moralistic altruism and paternalism militate against respect for privacy or for autonomy -- privacy and autonomy are by definition selfishness, willfulness, and anarchy -- and so there is no point in trying to break or abridge the relationships of dependency that they establish, or to restore any personal privacy. Such dependency, however, essentially means abject and demoralizing peonage.

Although the emphasis above has been on the duties of agents towards the needs of others, the other side of the principle is the moral right of needy agents to enforce those duties. If you emerge from the desert on the verge of death from lack of water, you have the right to take water from a well, even if the owner of the well doesn't want to give the water to you or even sell it at a reasonable price. Indeed, if the owner of the well tries to stop you from taking water by force, you are justified in using force to take the water. On the other hand, if you simply encounter someone in the desert who has some water, but it is not enough water for them to survive if they give you any, you have no right to it and the owner has the right to defend it by force. If they believe it will not be enough for them to survive, but it actually is enough, then they paradoxically have the right to defend by force what you have the right to take. On the other hand, you do owe the owner for the value of the water, and what you owe is some fair value of the water -- what the owner would have gotten if you had not needed it out of necessary -- and not what the owner might want to ask for it. If you are really on the verge of death, it might seem like a good deal to sell all your possessions or even your freedom for the water. But that would not be just. If the owner cannot be reasonable about the value of the water, some judicial resolution might be necessary.

These rights based on necessary may be called "powers" or "privileges" of necessity, the Jus necessitatis. It is a category of rights that suffers from the same uncertainties and possibly the same abuses as anything that is based on estimations of needs and abilities. It is a category that clearly justifies the classic case of "stealing to feed starving children," but in specific cases whether the stealing is really necessary to feed the children is often a good question. The principle in Latin is:  Necessitas non habet legem, "Necessity does not have a law" (German, Not kennt kein Gebot, "Need knows no law").

The principle of necessity is susceptible to false generalizations: since everyone needs employment, many are tempted to posit a "right to a job" which amounts to a power to compel someone in particular to offer a job. Since in a large and fluid market jobs could be obtained from many people, and jobs could even be obtained by self-employment, it is not clear how the "right to a job" could be reasonably enforced on the basis of the real ability and opportunities of any specific person. The "right to job" also easily becomes the "right to the kind of job, with the kind of pay, I would like." Freely handing out legal powers in that direction ends up damaging the employment of others in often hidden ways. If jobs and wages for some are bought at the cost of a crippled labor market that leaves 10% or 20% of the labor force unemployed (as during the Great Depression, when high wages were promoted by both Hoover and Roosevelt administrations -- or as in Western Europe today, where legally manipulated high wages translate into an average of 11% unemployment), then a very peculiar, self-defeating trade-off has been effected. Privileges of necessity thus properly must refer to immediate necessities, not generalizations about what people "need" in general when there are multiple ways in which those "needs" can be fulfilled.

At the same time, as political forces push the idea that jobs or medical care (or even food and housing) are necessities that must be provided by government, genuine necessity is otherwise eroded. Even the authoritarian and monarchist Thomas Hobbes said, "No law can oblige a man to abandon his own preservation." Yet judges, like George H. King, of the United States District Court, have ruled that medical necessity could not be used as a defense in drug cases. This has usually involved the anti-nausea and appetite promoting properties of marijuana. The reasoning of such judgments is noteworthy. If even the defendant would or will die without using mairjuana (as author Peter McWilliams actually did in the case before Judge King), the Law according to these judges requires, in essence, that they die. Violating the drug laws is so awful that the death of patients is preferable to making exceptions on the basis of compassion or necessity. In other cases, however, appelate Courts have ruled that medical necessity defenses must be allowed. Nevertheless, this has not become a general practice; and what we seem to see is the bias, animus, and antipathy that judges feel for the defendants prejudicing their application of the legal principles at their disposal. I have considered elsewhere the recourse that is open to judges who find the laws before them unconscionable.

Crime and Punishment, Repentance, Restitution, and Atonement

Morality, Justice, and Judicial Moralism

Ethics

Political Economy, Law

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Copyright (c) 1996, 1997, 2002, 2011 Kelley L. Ross, Ph.D. All Rights Reserved