Matthew O’Brien has responded handsomely to my response to his review with that fine spirit and thoughtfulness I’ve come to know. One surprising thing that came through to me, though, is this: Ordinary folk, engaging their “natural” understanding, have understood the issue of racial discrimination and its corollary, racial preferences, along the lines I’ve described, though they may know little of Kant. And at the same time, my hunch is that most of them would find it hard to work through the account O’Brien offered, sorting out Aristotle and Kant, and they would not understand exactly what judgment he finally produced. Indeed, at the end of it all O’Brien could move himself to say only that there is “no quick and easy argument.” It may not be quick, and it may not be easy, and yet it can be, for ordinary people, quite clear enough: if it is wrong to create disabilities for black people on the basis of race, it is wrong because it is wrong in principle—wrong to create disabilities or benefits for all people, even whites, on the basis of their race. Somehow people grasp the point that, from a person’s race alone we cannot draw any moral inferences as to what they deserve: we don’t know whether all black people have suffered discrimination, or on the other hand that all white people have absorbed manifest advantages solely because they are white. People have had a remarkably clear sense of this matter, even though they would not supply the ground I have supplied: that the error here comes in imputing to race a “deterministic” control over our conduct. With that sense of the matter, we understand that race cannot “determine” or control moral conduct, as though, on the basis of race alone we could know whether we are dealing with a good or a bad man, whose presence in the firm or the neighborhood would improve—or degrade—the place.
As I say, one doesn’t have to be a Kantian in order to make that argument. And invoking Kant as a bogey-man does nothing to show that there is something wrong in that argument. Consider Lincoln’s approach: “As I would not be a slave,” he said, “so I would not be a master.” Since he rejected the relation in principle, his rejection had nothing to do with the question of whether he stood on the advantaged or disadvantaged side of the relation. Now could someone say he is a Kantian? He talks about something wrong in principle, whose wrongness will not be effaced even by good consequences. But Lincoln knew nothing of Kant, and he supplied what Kant did not: a sense of classic prudence. He could recognize slavery as something wrong in principle, and yet he could make an accommodation with that evil for the sake of putting it “in the course of ultimate extinction.”
My friend Robert George will often invoke Kant on the matter of treating people as ends, rather than means. And yet he is not accused of bearing with him all the Kantian baggage because he found something in Kant illuminating. I would simply claim, in a comparable way, that I’m drawing upon parts of Kant’s teaching that explain better than anything else the properties of our moral judgments. I put the question then to Matt of whether he could draw on other writers dealing in natural law, to show us how they could offer a more compelling argument on those two issues I suggested, springing from two versions of “determinism”: racial discrimination (and I’d tuck in here its corollary, racial preferences), and withholding medical care on the assumption that people afflicted with deafness or Down’s syndrome had “lives not worth living.” As a way of sharpening the question, I’d just recall a couple of the Kantian arguments woven into my own argument, and which I think would be hard to reject—or do without:
- Kant warns us that we cannot make our way to our moral principles by simply generalizing on the checkered record of our species. If we did that, we would fall into the mistake of some recent writers who have suggested that infanticide and genocide must be in accord with natural law because they seem to be an intractable part of the human record. Those policies must be rooted, they infer, in something deeply planted in human nature. But natural law has ever made a distinction between what is higher and lower in human nature; and natural law has ever condemned the killing of the innocent.
- In detaching ourselves from mere “generalizations” we have the advantage also of delivering ourselves from the world of moral judgments that are merely “probabilistic.” Offices of Admission may assume that black people are far more likely than whites to have suffered discrimination and poverty. But that could not supply a justification for tilting in favor of any black candidate over that child from a Polish Catholic farmer in Hadley, Massachusetts, the first one in his family to go to college. And on the other side, it would be quite as indefensible to exclude from the neighborhood black families with teenage males just because people in that cohort generate a disproportionate share of violent crime.
- Kant warned us that a unanimity of feeling cannot offer a surrogate for a moral judgment. Even if we were unanimous in our passion for coca-cola, we could not make the coca-cola compulsory. “Feeling” may be evanescent; it is contingent on things changing day by day. It is strikingly different, say, from that first principle of moral judgment: that we may not hold people blameworthy or responsible for acts they were powerless to affect. That principle, as Kant might say, is implicit in the very logic of “moral judgment,” and yes, it would hold true then for every “rational creature as such.”
And why is that important? When we make laws, we sweep away the private preferences of people, and impose a public rule made binding on everyone. Hence the connection between the logic of morals and the logic of law: when we legislate for other people, we need to say something more than, “most of us here think this is desirable,” or “most of us have strong ‘feelings’ that this is the just thing to do.” We would need rather to establish that we are acting on the basis of propositions that would hold their validity for everyone, even if not everyone recognizes why they happen to be true. And that is what we do when we seek to trace our judgments back to anchoring “first principles” as Thomas Reid understood them: propositions that were true of necessity. John Marshall and Alexander Hamilton referred in this way to the “axioms” of our judgment, meaning essentially the same thing. And yet O’Brien writes as though it were odd or eccentric—or on the face of things implausible—to say that our judgments find their firmest ground when they are anchored in propositions of that kind, which cannot be denied without falling into contradiction.
That is what I indeed claimed to offer as the ultimate grounds of our judgments on that matter of racial discrimination (and racial preferences), and on that other issue, of withholding medical care from people who are deaf or afflicted with Down’s syndrome. (Here the recognition was that nothing in these attributes could “determine” in any way the moral character of persons and whether their lives were “worth living.”) Now what does O’Brien offer as the ground of his own judgment on these matters? He tells us:
We demonstrate [an argument] by carefully reflecting upon our personal and social history, the consequences of racism and neglect, the nature of human animality, and the unspoken ways in which every one of us is dependent upon other people for our happiness.
And therefore what is the judgment, say, on racial discrimination and racial preferences? The apostles of affirmative action are sure to pounce on the concern for “the consequences of racism and neglect” as they tell us why we have to indulge now a discrimination in favor of one racial group against another.
But that brings us to the deepest mystery here. Let’s say that I invoke the principle that even ordinary folks seem to understand: that it is wrong to make moral judgments about people based on their race and to assign benefits and disabilities based solely on race. I claim that this principle would hold, as Kant says, for any “rational creature as such.” Now, would that principle hold for people who are fathers, mothers, brothers, aunts, outfielders, divorcées? Why in the world would O’Brien say that anyone who speaks in this way about the principles that command the respect of “rational creatures as such” must have to pluck these people out of their lives and treat them as though they weren’t husbands and wives, fathers and mothers? O’ Brien affects to be surprised that I refer to “life as lived.” And yet, what has ever been the purpose of this exercise but to bring the principles of judgment to bear on cases of real people with real hurts?
In the course of his commentary, O’Brien touches on that question so central to political life, the question of the “political regime.” And he tells us then that “there’s at best a negligible sense in which I chose to be an American.” Yes, he was born in America, but does that mean that he sees no rational ground—and therefore no principled ground—for adhering to the American regime? As Fr. Neuhaus used to say, a good citizen is one who can offer a moral defense of the regime that merits his commitment. In the recoil from Kant, has O’Brien backed away from a notion of “rational principles” to ground our judgments, even about this central matter of our political life? Is he leaving everything to the curious mix of “personal and social history” and “human animality,” and with no real principle, finally, to govern our judgments?
And the judgments remain to be made. It is still worth trying to see how he would make them. What versions of natural law might be drawn upon in offering a better set of arguments than the ones I’ve unfolded on those two matters I suggested: (a) racial discrimination and racial preferences, and (b) the withdrawal of medical care from those afflicted with disabilities such as deafness or Down’s syndrome. But this is not a burden that falls distinctly to O’Brien. For the good deed of doing such a thoughtful review of my book, I drew him into a further conversation, and ended up making more work for him. But the question is still there, and it is of real interest in our circle.
In the meantime, I’d offer this plea: The fact that some of us find Kant quite persuasive on certain points does not mean that we carry with us all of the baggage of Kant. And simply to invoke the specter of Kant is not enough to show that the judgments people are making, when drawing on Kant’s teaching, are wrong. At some point one has to face the judgments themselves and explain why they are wrong. And if they are wrong, tell us a better set of reasons to produce a judgment far more just and defensible.
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law (Cambridge).
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