PEA Soup Book Review: Barbara Herman’s “The Moral Habitat”, review from Sophia Moreau

26 Replies to “PEA Soup Book Review: Barbara Herman’s “The Moral Habitat”, review from Sophia Moreau”

1. Thank you, Sophia, for such an interesting and rich comment. I share your concern with (a) the degree to which, if any, we can give a role to social connections within our moral theorising, and, thus, (b) the likelihood that, giving a prominent role to those conventions will give rise to conflicts between duties. I have two points. (I have only been able to go through the book at enormous speed, and apologise in advance, to you and to Professor Herman, for any misunderstanding.)

   First, I find the examples you give convincing. I wonder though whether Professor Herman might be tempted to deal with those examples by drawing on her discussion of early marriage for girls, and concede that, with respect to housing, a social convention of hospitality in societies in which the burden of looking after strangers falls on women qua women should not be regarded as dispositive. Of course, given that in most societies, most social conventions do rely and embed gender inequality, this kind of reply would reduce the practical scope, as it were, of her account, but it might leave that account standing, theoretically speaking.

   I say ‘might’, for I have some doubts. Here is another housing example, where the conventions at issue do not reply and embed a violation of fundamental equality in the way they do in your examples. In my home country, France, landlords are subject to stringent legal restrictions with respect to their tenants. In particular, even if a tenant is in considerable rent arrears, a landlord is legally barred from expulsing him from November 1st to March 31st – we call it the ‘winter reprieve’. (An exception, tied to the home as a place of oppression: the reprieve does not apply in cases of domestic violence: a court can order expulsion at any time, though the landlord can expel in the winter only if the court so orders..) There is no such reprieve in England, where I live. Now, we could argue that French social conventions support a tenant-favourable conception of the right to housing, whereas English social conventions support a landlord-favourable conception of the right – period. Yet. I think that English law is *unjust*: having the legal right to kick someone out of their home in the depth of the winter, with no constraints on one’s grounds for doing so and with no regard for what they and their family might then endure, under conditions of chronic public housing shortages, is (pro tanto) morally wrong. Am I mistaken in so thinking? I am genuinely curious to hear what people think.

   Second, on the conflict, or lack thereof, between religious faith and women’s reproductive freedom: Sophia, I share your scepticism of Prof Herman’s consistency claim at p. 176. The worry is particularly acute in cases in which parents’ faith-based values include judgements parents’s religious rights in have the moral right to do in respect of their children. The case of under-age marriage is relatively easy within Professor Herman’s framework (ie, we need not accept the Roman Catholic’s view, as set out in the Code of Canon Law, that a ‘woman’ (it uses that word) can get validly married in the eyes of the Church as early as 14 years of age.) A harder case perhaps: do parents have the moral’ right – and ought they to be given the legal right – in the name of their catholic belief to deny their under-age daughter access to contraception? I’d say ‘no’, but I am not sure I can say as much if I live in Professor Herman’s moral habitat…

   These are just embryonic thoughts…I look forward to reading the other comments.
   Cecile

2. Thanks for these really interesting comments Sophia!

   Like Sophia I think The Moral Habitat is a simply fantastic book. It gives us a really fresh, creative, exciting, deep and compelling look at very well-trodden ground, as well as opening completely new ground. I also agree that one of the many fascinating features of the book is the way Herman presents the relation between the moral and the political parts of Kant’s practical philosophy. And also like Sophia, I am particularly interested in the implications of the moral habitat view for thinking about our duties under conditions of injustice.

   If I have understood Herman’s view correctly, I think she could respond to the first of Sophia’s points by saying that the idea would not be simply to appeal to any actual social and legal institutions, but rather ones that are (at least minimally) just. For example, one of the reasons Herman gives for showing the dependence of the moral on the political is that we can’t understand giving and generosity (and therefore also can’t understand gratitude) without knowing what is ours to give, and therefore without an account of property rights. But one might think there is more than one possible way of having just property rights, and in different (just) systems of property, what is ours to give will be different. Thus, I think one could read The Moral Habitat as a relatively ideal theory account of the relation between the moral and the political, in which case Herman’s aim wasn’t giving an account of how this relation works in unjust conditions, but showing how moral will vary in a way that depends on the political under varied, just, political relations.

   But I think the moral habitat account still opens up really interesting and important questions concerning injustice. This takes me to Sophia’s second comment, though I will try to make the point in a slightly different way. Sophia says that once social conventions and actual laws play a role in shaping our moral duties, then, given that so many of them are unjust, it is not clear that the set of duties we stand under will appear as such a coherent, ordered system. I think this point can also be made if we take Herman’s account as a relatively ideal theory. As I understand her, Herman reads Kant as saying that in addition to the constitutive role reason’s highest principle plays in constituting our free agency (Kant’s argument, I take it, in the Groundwork), our rational willing (practical reason) is unavoidably committed to willing as a public ‘we’. Since there are features of our practical lives we can’t resolve through our individual willing, but only through an omnilateral will, willing as a ‘we’ realized by a public authority, is a condition of our agency to which we are rationally committed. But now on this picture, we are rationally committed to willing something that isn’t there, or isn’t properly there when we are not living in conditions of justice, and further, on Herman’s account, we are committed to this as the background condition against which our moral and non-moral lives can make sense. This might seem to threaten the sense we can make of our moral lives under conditions of injustice.

   For example, if gratitude resides ‘within a set of ethical duties that are to shape the actions and relations of persons already acting under the governance of duties of right’ (Herman 2022, 22–23), we have a question about how we should think about the workings of gratitude in conditions under which people are not so acting. I think this is in fact Kant’s concern with supposed generous giving to those whose severe need is caused by conditions of injustice. Similarly, Herman notes of her imperfect duty to be an agent of change, ‘[t]his sort of talk about change and adjustment makes most sense in a system of duties not grievously unjust at the root’ (Herman 2022, 183). This leads to the further project of working out what the moral habitat view tells us to do when we exist in conditions that are ‘grievously unjust at the root’. I don’t take this in any way to be an objection to Herman’s magnificent book, but rather, I think the book brings out the questions that arise from taking seriously Kant’s unified account. I take it to be a feature, not a bug, of a Kantian account that it is hard to see how we can get a fully coherent view of our practical obligations – how we can fully make moral sense of our lives – under conditions of injustice.

3. Thanks so much for the excellent post Sophia, and I’m sorry, Barbara, for not having had a chance to read your book yet; I’ll be sure to do so as it sounds fascinating.

   I had a question about the idea that the content of our duties depend on conventions, political institutions, laws and facts. Sophia rightly notes that there are uncontroversial versions of this claim. For example, I can have duties not to breach contracts only if there are contracts and what contracts there are depends on the law. Some also think that there are obligations to obey the law as such, and if there are, those obviously depend on the law. But this is not, I take it, what Barbara is after.

   Aside from that, I wondered what version of the claim is both controversial and true. One idea is: there are non-institutional duties, such as duties of assistance, but the specific content of those duties depends on legal facts. But again, there seem to be uncontroversial instances of this that don’t seem terribly philosophically important. One way to assist a person might be to contract to help them, and my ability to do that depends on the law. But that doesn’t tell us anything very important about the duty of assistance. I wondered if the same thing was true of whether giving away my property is an act of generosity. That depends on my having property, and that (perhaps) depends on the law. But I wondered how much that tells us about the duty of generosity? Is there any real deep difference between this case and the case where give up my time, where what time I have doesn’t depend on the law?

   My impression is that the aim is to show some deeper or more fundamental connection between the specification of. our duties and the political, legal, social institutions within which we live, but I wasn’t quite able to put my finger on what that was (without having read the book of course!!!), and I thought it might help the discussion to have a clearer sense of what this is.

4. Thank you so much, Cecile, Lucy and Victor for your thoughts and questions. I think it’s easier for me to discuss your helpful examples, Cecile, and your very nuanced ideal and non-ideal versions of Herman’s position, Lucy, in the course of addressing Victor’s important question. So I’ll start with Victor’s question: what might Herman (or someone like me) mean by the claim that there is some deep way in which social conventions or legal institutions shape our moral duties, that appears plausible enough to be true but is actually controversial? It seems to me that (1), (2) and (3), below, each imply that social conventions and legal institutions play a role in shaping our moral duties. Each is plausible and yet at the same time controversial:

   (1) There exist some imperfect moral duties (like the individual’s duty to express gratitude) and imperfect juridical duties (like the state’s duty to provide public health care), which involve required ends but give individuals (and groups) some say in how those ends are to be realized. These are duties whose content depends in complex ways on an agent’s or a government’s choices. This is controversial. Not everyone accepts that imperfect moral duties exist; and many deny that the state could ever be under an imperfect duty (though Larry Sager has written, convincingly I think, that it can). Of course, as Herman (and Sager) conceptualize imperfect duties, the discretion attaching to them is not a license to do whatever one wants or to do. The agent’s discretion in these cases is a bit like the discretion of a public official who has been given a fairly strict mandate by their institutional role: they have some latitude concerning means and priorities, but need to be sure they are realizing a certain stipulated purpose. For Herman, the agent assessing what a certain imperfect duty requires (say, the duty to take due care) needs this discretion in order to make sure they are attending to a given duty in ways that respect their *other* duties and their commitments. So the claim isn’t the implausible claim that my imperfect duties depend on whatever I choose, or that certain conventions or legal or political decisions just magically turn things into duties. The idea is rather that how I conceive of myself and my other obligations will, in cases of imperfect duties, make a difference to what I ought to do now; and since this will always depend on social conventions, social conventions have a role in shaping what our duties are.

   (2) There is also an innovative picture of duties, more generally, that Herman suggests, that ties duties (ie not just imperfect duties, but any duty) to our commitments and our conventions. I’m trying here to put this in language that doesn’t presuppose a Kantian framework, so it may sound clumsy, but here’s the best I can do: the idea is that it’s a mistake to think of any duty as a fixed directive telling us to do x or adopt end e in circumstances c. Rather, duties are best thought of as interdependent ways of realizing certain values, ways that are managed by us, and hence that depend on the various institutions that express and shape those values in our society. This in turn means duties are what Herman calls “dynamic”: it’s true not just that what duties I have change as my circumstances change (that’s obvious and uncontroversial) but that what it is true that I ought to do in circumstances c actually changes over time, as my and my society’s interpretations of various values change. So to go back to right to housing, it exists fundamentally to fulfil a claim that every person has on every other person and on their government to rightfully be somewhere at all times, in the kind of place where they can secure an equal and independent civic status. (Of course, if each of us has a claim on each other rightfully to be somewhere, then our government has a duty either to ensurer that landlords don’t suddenly evict tenants and leave them with nowhere to do at any time of year, not just in the winter; though this could be fulfilled either through the kind of French prohibition you discuss, Cecile, or through the provision of adequate public housing. So Cecile, I think Herman would certainly agree with you that the situation in France is unjust, and I think her theory has the resources to explain why). What’s relevant to your concern, Victor, is that the values of equality and independence that the right to housing is supposed to realize can be given quite a number of different interpretations. And this is, I take it, where there might be a role for social conventions. I think Lucy is right that there are different ways of reading Herman here. If we read her theory as a contribution to ideal theory –which I don’t actually think she intends, but it’s possible– then we start with a very robust, independent conception of each of these values, which limits what the right to housing can involve and gives no role to social conventions. So, to go back to my initial post, we might, on this sort of reading, reject an interpretation of the right to housing that takes homeowners to be under a duty to take in strangers –hosting conventions are, on this view, quite irrelevant. What is relevant is only what equality and independence require (which, presumably, we are to ascertain by thinking about the nature of moral persons, their capacities, their needs, and their duties to one another, but *not* by thinking about the conventions or the commitments of a given society). If, on the other hand, we read Herman’s theory as a contribution to non-ideal theory, I think there is room to allow that our interpretations of equality and independence will vary somewhat from society to society, and will depend partly on social conventions. The point here is not that a convention *becomes* a duty. It is rather that certain conventions tell us who we are, in ways that we cannot disregard when we think of ourselves as moral agents; and so indirectly, these conventions shape the ways we understand the values that underlie certain duties. They express a certain vision of what we owe to others by way of equal treatment, for instance, or what we owe to them by way of respect for their independence or autonomy. I think Herman would insist that, even on such a non-ideal theory, the values of equality and independence play a certain constraining role –one that I have argued for elsewhere also. That is, at a certain point, something becomes not an interpretation of women’s equality but a refusal to treat them as equals –and at this point, it stops being relevant as an interpretation of the right to housing. So Lucy, I’d agree with you that, at the other extreme end, when we are dealing with what is “grieviously unjust at the root,” we lose the ability to assess what duties require. But I think there is a lot of ground in the middle. That is, I think there is a lot of space within non-ideal theory before we get to the realm of the grieviously unjust. And it’s in this space that I meant to locate the questions within my original post. I think there are many ways of interpreting equality and independence –many different ways of understanding duties like the duty to provide housing– that fall short of grievious injustice of a sort that takes us out of the realm of moral theorizing altogether, but that are hardly instances of ideal theory. And it’s here where social conventions that are partly unjust seem to me to play a shaping role. The question I find fascinating is: what do we say about these duties and those who stand under them? Can people have complaints of unfairness about these duties, even though they are real moral duties? Can the women who have to host others repeatedly, in ways that are fairly burdensome but not so burdensome as to deny their autonomy, complain about this –and what does it really mean, from a moral standpoint, for them to have such a complaint?

   Something I should add here, that I didn’t mention in my original post but that is no doubt relevant and might help alleviate worries of implausibility, is that Herman recognizes a duty to “be an agent of moral change.” On a more conventional, static picture of duty, one can understand people being agents of moral change only in the sense that they have a duty to alter unjust social practices and, where appropriate, to help other people grow into more mature moral agents. But once we think of duties as containing certain unfair elements, then the duty to be an agent of moral change becomes more complex —it’s a duty to act in ways that will change not just other people’s behaviour and our practices, but *our duties* themselves. So then in light of this, it may become in a way less troubling that some of our duties have unjust or unfair elements. Because really, on Herman’s view, it’s not the case that the only thing we can do about this is throw up our hands and say “Ah well, that’s your duty!” We can say: that’s your duty now, but it’s problematic, and certain other people have a duty to take steps to change the fact that this is your duty.

   (3) Another reason why our moral duties depend on empirical facts on Herman’s view is that they are *interdependent* in complex ways, which not everyone agrees about. So, because imperfect duties involve our discretion, and our other duties depend on these imperfect duties, this means that our other duties, in turn, come to depend on certain empirical facts about how we have decided to do things in different areas of our individual and collective moral lives. Since the scope of one duty (say my duty to provide health care for my child) depends on content and extent of other duties (say the extent of the state’s duty to provide public health care) what I ought to do will then depend on choices that, eg. my state has made, which are empirical facts. I take it that some would deny this interdependence of duties: they would hold that each duty is fixed and relatively independent of others, or that moral duties are independent of legal ones. Victor, I take it that much of the moral theorizing that you do when you look at individual hypothetical cases depends on the assumption that we can isolate the moral relevance of certain variables and discuss them meaningfully, coming to certain conclusions about them that will hold true across other cases. So your approach to moral theorizing seems, if I understand it rightly, to deny some of the interdependence of duties that Herman insists on. And there are of course very different ways of reading Kant, according to which the legal is a separate domain from the moral, with legal duties having one source and our moral duties, another.

   I feel as though this barely scratches the surface, but I think I should stop here for now!

5. Perhaps this is premature, but I thought I might usefully add a couple of thoughts to the many so generously offered here. One is about ideal vs non-ideal theory. I do not view the account I’ve begun setting out in The Moral Habitat as a piece of non-ideal theory, as if on the other side of our epistemic and other limitations there’s an ideal theory. (But not ideal theory, either. I’d like to give up the ideal/non-ideal talk except in the context of compliance.) That injustice may be part of the back story of a duty, or a part of a duty, is like learning that it’s normal for the healthy human body to carry a tumor load. My friend Kant tells us that the attitude of helping should be affected by awareness of the injustice that creates the inequality, and that the opportunity to be helpful can itself be a product of injustice, so not much of a virtue. What matters is that the help be honest to the conditions of need and respectful (so sometimes anonymous); and, I’d think we’d all add, that the helper seek to understand the conditions of need and the nature of their remedy. Our responsibilities are extensive if the normal moral world is morally messy (thus the duty to be an agent moral change). I do think, with Sophia, that a dynamic, empirically inflected system of duties has to be in hermeneutic connection with a set of values that are not messy, even if understood only as articulated in duties, and better understood as underlying assumptions are subject to criticism. A recent article that makes this kind of case is Robin West’s “Consent, Legitimation, and Dysphoria,” which describes how a really good thing, making consent central to sexual encounter, can itself make it hard to see the deeply related problem of “bad” or unhappy sex, which may be all that’s on offer for lots of consenting. It’s the right kind of criticism as it opens a deeper investigation of how (and why) we may be over-valuing the transactions to which we consent, because we consent.

   In being drawn to the idea of a *dynamic* system of duties, there are things one has to give up. E.g., that a duty or moral requirement is less of a “real duty” today if its requirement may change over time, or if its expression is unfairly burdensome. If we think of duties as secular versions of divine directives, then if it’s a “real duty” who could complain? But if we think of duties as value-based solutions to real problems (of trust, or generosity or fairness), then we will be less surprised, and more open to hearing the complaint that “good as this solution is, there’s an inherited asymmetry/injustice that’s making things worse in some other way”. (In a recent seminar, Seana Shiffrin and I tried out the idea of duties as “working principles” that operationalize moral value and formal structural requirements.)

   I’m drawn to the idea of a *system* of duties because we are often acting under the auspices of multiple duties, so system puts a burden on articulating a greater coherence rather than throwing up our hands once there’s perceived conflict. It also opens the door to what I call “the consilience of duties,” where two (or more) duties joint application can have a transformative effect – doing more than their iterated application would – and so deepen our understanding of what’s at stake in the deliberative guidance each duty provides.

   Last thing. my embarrassed apologies for allowing an error to remain in the book that Sophia rightly found surprising. The text at 175-6 says “And it shouldn’t be hard, not *morally* hard, to see that respect for individuals’ faith-based values is consistent with reproductive freedom for women” when it was supposed to say “is INconsistent with reproductive freedom for women”.

6. Thank you for these helpful reflections on Barbara Herman’s book, Sophia Moreau, and thank you to the commenters for the interesting discussion. I look forward to reading the book!!

7. Thank you so much, Barbara, Cecile, Lucy, and Victor, for your insightful comments and analysis. I would like to contribute by asking about the possible moral dualism that the thesis elaborated by Sophia could lead to if the thesis developed by Barbara were to be rejected.

   Sophia’s thesis begins by quoting the thesis developed by Barbara Herman, as follows: “Herman says, ‘the content of our duties is empirically responsive’ (p. 214). Or, as she puts it a bit earlier in the book, we cannot identify an ideal system of duties without delving deeply into the social and legal institutions that actually structure our interactions with each other: the duties that bind us as individuals and that bind the state ‘have to be shaped to fit the world we live in’ (p. 170)”.

   In fact, Herman’s book is guided by a contemporary, problem-oriented approach where the application of general principles must leave considerable room for judgments conditioned by circumstance and sensitivity.

   For Herman, one might go so far as to propose that Kant’s position would be less misunderstood if expressed not as a matter of acting ‘from duty’ but of acting ‘for’ it, that is, for what duty commands, which is to do the right thing for the ‘right reason’ (69, 78, 230).

   This ‘right reason’ might include a social sensibility to commitment to those duties. Without such a commitment, in contemporary social conditions, the fulfillment of those duties might be illusory.

   For Sophia, this thesis, although interesting, leads to two specific theoretical problems: (i) The problem of unfair obligations and (ii) The problem of conflicting obligations. These ideas render Sophia’s thesis problematic.

   Considering this conclusion, I would like to express two possible doubts about Sophia’s thesis. Certainly, my doubts could be grounded mistakenly. Therefore, if Sophia could address them, it would be fantastic.

   Firstly, I would like to know if you could delve into the ideas underlying your thesis about ethical duties. Specifically, I am wondering if, from the criticism of Barbara Herman’s thesis that you carried out, you are trying to maintain a strict ethical dualism, where duties are not conditioned by social reality.

   This dualism is relevant to my second doubt. Kant points out the existence of four different kinds of duties in the moral realm in his ‘Groundwork’: perfect duties to oneself, such as the prohibition of suicide; perfect duties to others, such as the prohibition of deceitful promises; imperfect duties to oneself, such as the prescription to cultivate one’s talents; and imperfect duties to others, such as the prescription of benevolence (4: 422–3, 429–30).

   Leaving aside duties to oneself (as they are not important for our discussion), there are two different duties (perfect and imperfect) whose content differs and might contribute to this debate. The first ones (perfect duties) can be applied despite their abstract content due to their narrow sense. Reality, in this sense, does not add any additional conditions to their compliance. Instead, imperfect duties require a broad analysis because their semantically wide content includes ‘contextual’ conditions within it.

   I tend to think that due care duties relate to these imperfect duties. In this sense, they need to be considered in the context in which they will be applied. For that reason, ignoring reality in this discussion could affect the precise content of Herman’s thesis.

   Can you tell me if you discard all contextual relevance in the description of ethical duties, even if we accept the existence of these imperfect duties?

   Thank you very much, again.

8. Barbara, thank you so much for chiming in to clarify and to share your thoughts. As I hope my post suggested, I find your idea of that duties are “value-based solution to real problems,” and that they must therefore be responsive to, and will sometimes be infected by, injustices in the world, very attractive. I am guessing that you eschew the ideal/non-ideal distinction because even an “ideal” set of duties will always need to be a set of duties *for us*. So, to put it in non-Kantian terms, whatever duties we stand under will always need to be responsive to the institutions that help to structure our pursuit of various values.

   But I do think there are still two puzzles here –the ones I originally pointed to. Barbara, you say (and I agree) that duties have “to be in hermeneutic connection with a set of values that are not messy, even if understood only as articulated in duties, and better understood as underlying assumptions are subject to criticism.” But the first part of this sentence, with its emphasis on the underlying values *not* being messy, makes it sound as though values like equality and independence need to be given a fixed interpretation that does not vary across societies and that will not be affected by unjust features of the social order. Whereas the end of the sentence –allowing as it does that even particular interpretations of values can be subject to criticism- suggests there is more room for variability depending on different social circumstances, and hence more room for injustices to creep in. So we come back to the original set of worries I think: the more we allow that particular social circumstances can shape our interpretations of the values that underlie our duties, the more room we leave for unfair duties and conflicts between duties (although of course it helps to recognize that duties too can be subject to criticism); but the more we insist that the values underlying our duties are “not messy,” the more palatable and more coherent our conclusions may be about what duties people stand under, but we risk ending up with a theory of duties that aren’t duties *for us*, given our current circumstances and problems. It’s not, as I see it, a question of endorsing either one or the other of these approaches, so much as figuring out where on a spectrum we ought to be. I’m still hoping we can also –in addition to discussing and clarifying Barbara’s important views– have a conversation about what the rest of you think about this, either as a general problem or in the context of a particular duty.

9. Ignacio, thank you for your comment! I think you’ve misunderstood my position and the point of my raising these two “problems.” I wasn’t joking when I said in the post that I didn’t regard these as flaws in Herman’s theory, but thought of them as deep moral problems. I meant it! So my post wasn’t intended as a kind of reductio of the position that our duties need to be conceptualized in a contextual way. It was, rather, intended to show that once we accept Herman’s insights into how we need to think of our duties (as I do), then we then face really important philosophical questions. I was trying to suggest that Herman has done us a *service* by pointing us to these questions, not that these questions show that the way she is conceptualizing duties is unsustainable. I agree with her that we need to see duties as ways of responding to value that depend crucially on what institutions are at our disposal, as we try to build a life for ourselves and those around us that respects values such as equality and independence. The point is that once we see duties in this way, there are new questions that arise, and that’s what I was hoping we could talk more about. One of these questions is: to what extent do values like equality and independence play an independent constraining role, and to what extent are they themselves shaped very much by our social circumstances? Another is: given that some duties, on this picture, will be unfairly imposed on the agent, how should we conceptualize a person’s complaint about these duties, and what is the moral force of such a complaint? How might an agent’s complaint about a duty that they stand under affect the content or scope of that duty, or the response that others should give when the agent fails to comply with it? Also, I would disagree with your suggestion that it’s only imperfect duties that are socially responsive. I think perfect duties are too, and I think once we accept Herman’s picture of duties, we have to recognize that perfect duties, too, are socially responsive. They too are parts of this same dynamic system of duties; so it couldn’t be true that they are static and fixed for all time while imperfect duties can change. They give less role for an agent’s discretion, certainly; but they too can change over time, and they too must be responsive to changes in our other duties.

10. HI Sophia,
    thanks so much for the rich reply. There’s tons to think about there. I’m certainly happy with the view that duties are interdependent, so that whether I have a duty to do x depends on a range of things, including my other duties, what others do and are required to do and so on. I don’t think the fact that I use cases commits me otherwise (in fact, I’m tempted to construct pairs of cases to defend the point!!!).

    Let me pick up on one thing about conventions from your reply. Conventions often play an facilitatory role in determining what we are required to do. For example, if I invite you into my home, and there is a convention in our society about what such invitations include, that determines what the invitation involves, assuming that we both understand the convention. And that determines our duties. But the role of convention in that case is just facilitatory – I have an intention about what the invitation involves, and the convention makes it easy for me to express that intention and for you to understand it. But ultimately it is my intention and your understanding of it that matters, and not the convention. The convention just makes it easy to communicate my intention and give it more precise content.

    You suggest a different role for conventions in moral theory – that the fact that there is a conventional interpretation of some value in some society gives rise to a requirement to realise that value in line with the convention. And I take it that the view is that the existence of the convention makes a difference as such, and not simply because people’s expectations are thus met, or their preferences satisfied. I wondered what the argument was for giving convention that role. Suppose that the right to housing is conventionally understood in some way in a society. A government could provide housing in the conventional way, or some convention-bucking way. No one in the society minds either way, and no one is worse off either way, because the convention bucking way will just start a new convention that will make things just as easy. Is there then still a reason, or duty, to do the conventional thing? I’m tempted to say no. Perhaps if there is a valuable tradition to uphold, or if a society has invested in developing a social practice that has distinctive value, there is reason to continue that tradition or practice (and the existence of pernicious traditions might provide reasons for change). But a mere convention doesn’t seem enough.

11. Just wanted to pick up on a few points from yesterday made by Cecile and Lucy, and to ask Victor a question.

    Victor, I was hoping you might chime into this discussion to share some of the fascinating thoughts you and I talked about earlier this year, concerning your work on consent to sex in circumstances of social injustice and concealment. I see this as one of the areas in which the questions I’ve been raising arise. (Correct me if I have any of the facts or the moral problems wrong as I try to remember what you’re working on!) There’s a background social injustice: certain countries ban same sex marriage and also ban same sex intimacy in public. Some people then decide they want to marry someone of the opposite sex, because they see that as their only chance for happiness as long as they reside in their current country, but they conceal their sexual orientation from their partner. There’s then, as I understood you earlier this year, a set of fascinating issues that arises about what we say about their partner’s consent to sex and consent to the relationship as a whole. Did they consent? What does consent require under these circumstances of injustice? What duties do either of these people have towards each other, and how does the background social injustice that gave rise to their relationship affect these duties? I’d love to hear your thoughts on this, as it pertains to the questions in this blog discussion.

    Cecile, although it’s helpful that Barbara corrected that quote about faith-based values and women’s reproductive freedom, I think you’re right to point out that there are very difficult questions to ask about the limits of parents’ moral rights to raise their children in the way they believe fit , and in particular in accordance with their religious beliefs, when these beliefs impinge on the reproductive freedom of their daughters. My own view is that, because denying a woman access to contraception compromises her autonomy in such a fundamental way –denying her the ability to make deeply important decisions about her own body, and potentially subjecting her to a lifetime of sacrifice for another person– a parent has no right to deny this to their child in any society. Recognizing such a parental right would violate a very basic moral idea of independence; and I think we can recognize that morality constrains our interpretations of particular rights and duties in this kind of case, even if we allow that in many cases our interpretations of rights and duties are socially variable, in the ways that I’ve discussed in my other posts. I wonder if a more difficult case is whether parents and school boards have the moral right to limit what young children read by banning certain books in school libraries –certainly a live issue in places like Florida right now. Here, provided we are talking about young children and not about older children, there may be more room for debate. On the one hand, this isn’t a matter of bodily interference, and the children are young enough that they are, some might say, not full moral agents able to make informed decisions about what to read (I’m not sure I’d agree, but that’s another question!). On the other hand, surely not having access to other points of view or to other ways of seeing the world through books can be hugely limiting, and all the more so when it happens to a person at a young, impressionable age. I think it makes a huge difference here what is being banned, and what message the ban sends about particular social groups. If it is just a ban on books containing profanities, that may be acceptable, but if it’s a ban on whatever the parents or schools think is “offensive” and they find certain social groups or lifestyles offensive, that changes things entirely. In the latter case, I would also say that morality constrains us here and that this is simply not a right any parent or school could ever have, in any society.

    Lucy, I wanted to pick up on something you said about circumstances of severe injustice, and your concern that a theory like Herman’s would not be able to say anything about our duties in such circumstances because it looks as though it’s impossible for there to *be* a dynamic system of duties in such circumstances. The worry, as I understand it, is that if “willing as a ‘we’ realized by a public authority is a condition of our agency,” then if we are living within a fundamentally unjust state, there is no willing as a ‘we’ going on, and hence, no moral agency is possible. I wonder whether Herman could reply that the condition of our moral agency isn’t *succcessful* willing as a ‘we’, it’s an *attempt* to will as a we –so as long as the deeply unjust state involves an attempt to will as a ‘we’, its members can still be thought of as engaged in the attempt to construct a moral habitat. But I’ve been thinking about whether this is an adequate reply or not. Of course in some very unjust states, and within some deeply unjust religious groups, it’s really not plausible to think of there being even an *attempt* to “will as a we.” And yet surely we want to say that, even within such a group, there can be some heroic attempts to develop a system of moral duties, through recognizably moral reasoning. I think here of Sarah Polley’s brilliant recent film, Women Talking, which I take to be about just such a scenario and about the possibility of a group of women nevertheless becoming moral agents even in the face of a political system that denies them almost *every* kind of moral agency and most of the conditions for it. Within their Mennonite colony, they are not taught to read, never shown a map, never allowed to make any demands of the men, and the men have systematically raped the women and then told them it was all their own imagination or the work of the devil. The colony, then, is deeply unjust and excludes all women from the status of moral agents. Yet nevertheless, the film is so moving because, when the women get together to try to decide what to do (should they leave, should they stay and fight), what they are engaged in is *recognizably* an attempt both at democratic dialogue and at developing –out of nothing other than their own oppressive religion– a sense of themselves as moral agents. Reflecting on this film leads me to think: perhaps it’s just not true that we can only be moral agents under the sorts of conditions that Kant imagines.

12. Until I encountered The Moral Habitat, I had a laundry list of reasons why, at the end of the day, I was not a Kantian. Barbara Herman’s wonderful interpretation of Kant, in particular her imaginative interweaving of elements of the doctrine of right and the doctrine of virtue, brings in to view elements of a Kantian account at once so obvious (in retrospect!), so revolutionary, and so compelling, that I find my laundry list dwindling by the page — and wondering whether I might not be a Kantian after all.

    As Sophia’s opening remarks rightly suggest, much of what is at once both obvious and revolutionary about Herman’s Kant flows from her case that our perfect and imperfect duties must be articulated through our juridical duties. The elements of our moral habitat supplied by such juridical duties are necessary to determine when gratitude is even an appropriate response, for example, and they are crucial to any determination of what I am permitted or even required to do in expressing my gratitude. If my manager at work is legally required to grant me paternal leave, I need not be grateful to her for my leave. If she is not legally required, but exercises her discretion to grant me leave, gratitude may well be appropriate. Does it matter that such leave should be legally required even if it is not — that the omnilateral will ought to secure such a right for parents as a feature of our moral habitat whether or not it does so? It seems plausible that for Herman’s Kant it does. What I am appropriately grateful to my manager for, and what expressions of gratitude are permitted or required, differs in a habitat in which she is granting me something that I ought to (but don’t) have.

    Herman offers us a wonderful metaphor for the articulation of our duties on this approach, that “practical concerns coming from other duties and moral concerns are already in the catchment area” (79) of any duty. The duty is not weighed against such other duties, it is articulated through appeal to these other duties that are in its ‘catchment area’. The catchment area of any imperfect duty may include juridical duties that we think that we ought not to have, for example, and may not include juridical rights that we think we ought to have. These present duties and absent rights are elements of our moral habitat within which we appropriately operate in the articulation of our imperfect and imperfect duties, but perhaps also elements that we are obligated to work to change, and that alter in significant ways what such moral duties permit and require.

    Some elements of our moral habitat simply differ from those in which others operate. Others are not just different, but lacking in crucial respects. Such problematic elements of our moral habitat will be reflected in shortcomings in the ‘catchment area’ within which duties are properly articulated, shortcomings that indicate steps that must be taken to improve our habitat, and that are reflected in significant differences in what our moral duties require. All of this is to suggest that Herman’s Kantian framework for addressing Sophia’s wonderful examples may well have more resources, and be far more nuanced, than its predecessors.

13. Thanks, everyone, for your thoughts and ideas; it’s becoming such an interesting interchange! It’s a little tricky to respond so that all the ideas above are incorporated. In addition, Barbara, Lucy, and I discussed The Moral Habitat at the Pacific APA a few months ago and I’d like this to serve as an opportunity to connect to our conversations back then too. Let me try, but I apologize insofar as the connections are not obvious or if there aren’t enough of them.

    In any case, back at the APA, Barbara and I started a discussion about method, which, is, I believe, one of the themes running through the above interchanges. So, let me try to continue that discussion too, which has been with me since:

    One of the impressive things about Herman’s book is her use of examples. On the whole, the examples are rich, wide-ranging, and useful to all of us in our quest to become emotionally healthier, better human beings; they empower us by showing us the complexity characteristically involved in sound deliberation. For example, all of us who strive to always become better at friendship find much wisdom and guidance in The Moral Habitat. Also, or so I hope, Herman’s demonstration of what it looks like to argue properly by example will make obvious to many the wrongheadedness of the current tendency to try to solve all tremendously difficult questions by endlessly reflecting upon specific examples, such as drowning babies and trolleys out of control. Herman’s uses of examples are exemplary in these regards and nothing I am about to say undermines this. Rather, I’m a little worried what will happen once other philosophers take inspiration from Herman’s method and general approach and then set out to analyze complex and complicated moral issues. For example, it is after Kant has given his principled (a priori) account of status right that we find some of his sexism and heterosexism expressed in examples. Herman’s text, unsurprisingly, does not channel prejudices and dehumanization like Kant’s does. But I wonder if philosophers need more explicit help to understand philosophically what makes her examples so much wiser than Kant’s—unless, of course Herman, in her heart of hearts, thinks that this cannot be done because we are in the owl of Minerva territory here. Moreover, I find myself thinking that Herman’s position is extra vulnerable to this problem since she gives up on Kant’s idea that there are objectively true principles that yield truly perfect duties which do not allow for an exception to the rule, that there are things we ought never to do, such as lie or kill. Indeed, this feature, in my view, is very important to analyses about what to do/how to describe affairs when the people living there, like Lucy suggests in her comments here (and back at the APA) or your movie example, Sophie, face very unjust conditions. In my view, this is where it is better to use Kant’s distinction between formal and material wrongdoing — and, so, it is a way to make Kant’s theory relevant for philosophically critiquing life under these difficult situations. In my view, this feature of Kant’s theory is a strength and not a weakness, but it does involve accepting that once we move to the historical level of actual societies, Kant’s position is not committed to arguing that there is always a morally good way out.

    Second, though relatedly, arguing-by-example brings together what Kant distinguishes as “ideas of reason” (arguments only employing a priori principles), “moral anthropology” (MM 6: 217), and “a principle politics” (SRL 8: 429)—what Herman calls moving from “north” to “south” or from “form” to “content” (p. 208-9). Herman doesn’t think that doing this—moving from form to content—requires us to develop either a “moral anthropology” or a theory of how to apply the “principle of politics.” As Herman knows, I don’t agree with this; I do think we need to develop these theories (even though Kant himself never got around to it and the Doctrine of Right text also argues by example). Hence, while reading The Moral Habitat, I found myself thinking that it would have been useful for the readers to have these kinds of theoretical distinctions and theories available along the way. The readers would then have theoretical resources with which they could engage the examples offered. In addition, these theoretical resources would help them as they approach Kant’s own texts and try to figure out where his racism, sexism, heterosexism, etc. come from; likely places they may come from in us; and philosophical resources with which we all—individually and together—can correct them. And I find myself thinking that given the extraordinarily difficult societies and (Kantian) philosophical practice we are inheriting, making more rather than less (systematic) theory available is especially important right now. And one reason for thinking this is that these kinds of philosophical resources—whether we develop them in dialogue with Kant’s own, relevant writings or not—are especially important to those who live subjected to systemic injustice and who are seeking to empower themselves by means of philosophy, by increasing their philosophical understanding of the numbing and destructive forces they live subjected to.

    Third, though also relatedly, in my view, it is better we Kantians move beyond Kant’s (and Herman’s) tendency to describe examples only from the third person point of view; maybe this too would be a good means of reducing the territory of the owl of Minerva to its more appropriate size? Third-person descriptions, I think, easily become particularly limiting and sometimes problematic when our examples involve oppressed and violated individuals and groups. Let me explain. As I was reading The Moral Habitat, I realized that those (including me) who face (the rather constant threat or reality of) bad behavior—from oppression to violence—do not find descriptions of the examples or ways of deliberating in this book that speak directly to the challenges facing them (us). For example, Herman does have examples that track how some social groups are dehumanized in various ways or degrees—examples tracking some of the isms as well as specific peoples subjected to horrific oppression around the planet—but characteristically the examples or deliberations are not carried through from or also through these people’s first-person point of view or their (considered) first-personal understanding of their own lives. I think this is unfortunate because such first-person engagements are a resource for our theories as they help us ensure that we are tracking the right kinds of things.

14. (PS! Sorry, but I forgot to say the obvious about how wonderful Barbara Herman’s The Moral Habitat is :-)! If you want to read this, please see my review of it in The Philosophical Review here: https://read.dukeupress.edu/the-philosophical-review/article-abstract/132/2/309/365398/The-Moral-Habitat?redirectedFrom=fulltext)

15. Hi Sophia

    let me take up your invitation in this way. Suppose that a person consents to sex, believing some fact about the consentee that is untrue. There are various theories in the recent literature about when this mistake makes consent invalid. Many of those theories explore this by, for example, considering the meaning of consent given according to certain conventions, or the intentions of the consenter, or how the consenter would have responded had they known the truth about that fact. In my view, though, we cannot decide whether consent is valid without considering how power and opportunity are distributed in a society where consent is made valid or invalid on the basis of such mistakes. And that depends on the social circumstances of the consenter and consentee. For example, consider profoundly sexist societies where men prize virginity in women, so that men will not consent to marry and have children with non-virgins. In such societies, in my view, consent to sex by men might be valid where women lie about their virginity. This is so despite the fact that men may not intend to consent to sex with non-virgins, their consent may not conventionally extend to sex with non-virgins and so on (for those interested, I discuss this a bit in ‘Beyond the Scope of Consent’ in PPA).

    Now let me see how I can connect those ideas to the discussion. One doubt that Sophia had about Barbara’s view concerns the role of unjust institutions and conventions in shaping rights and duties. One way of understanding the view expressed above is that the injustice of institutions and conventions can give rise to rights and duties that conflict with the expectations created by those institutions and conventions precisely because of those institutions and conventions. We are not given rights and duties by institutions and conventions, on this view; on the contrary, our rights and duties are generated in order to counteract the pernicious effects of unjust institutions and conventions. Of course, it is possible that just institutions and conventions generate rights and duties. But in the real world, where state institutions and social conventions are typically deeply unjust, our rights and duties are more commonly shaped to allow us to escape or resist the pernicious effects of those institutions and conventions.

    I could also put this as a question that is along the lines of Sophia’s in the her introduction. To what extent does Barbara’s view of the moral habitat create space for specifying our rights and duties in a way that is guided by resistance to the conventional practices and institutions that problematically shape moral expectations in unjust societies? A concern that I’ve had about Kant’s political philosophy is that gives the law and political institutions too great a scope to generate inegalitarian social relations. I wondered the extent to which Barbara’s version addresses that concern.

16. Thank you all so much for these interesting further thoughts! I am now falling behind in my replies! In this comment, I’ll reply to Victor’s question about social conventions and their role in my view. Later this afternoon, I’ll reply to Paul and Helga’s thoughtful posts and Victor, to your answer to my question.

    Victor, I didn’t mean to suggest that “the fact that there is a conventional interpretation of some value in some society gives rise to a requirement to realise that value in line with the convention. “ My idea wasn’t that conventions always have moral relevance because they are conventions, and I certainly didn’t mean to suggest that there is a *requirement* to realize values in line with our conventions. In many cases, our conventions are deeply problematic (doffing your hat to members of the upper classes??) and there is a moral requirement to change them.

    So what role do conventions play, on my view? I was using “convention” as a kind of shorthand for ‘common social practice,’ of a kind that expresses something a group values. And I was thinking of the influence of conventions on our moral duties as something much more indirect and diffuse. The thought was that any moral value –such as the ones that Herman takes to be at the heart of the right to housing, equality and independence—is going to be interpreted in various ways in different societies, and it’s within our common social practices that we find the interpretations that are possible for people within a given society, and that in turn make a difference to what we ought to do.

    Here’s one example: consider the duty to provide health care. Within ancient Roman society, the convention was that the head of each family had an obligation to provide for whatever healthcare they could, for their family. The Romans had no conception of state-funded, public healthcare (the point of the valetudinaria, or military hospitals for soldiers, was just to keep the army functioning; it wasn’t because anybody thought the state had a duty to the public at large to provide health care). It seems plausible to me that, in a habitat like this, where there is no conception of the state as the kind of entity that could owe the public a duty to provide healthcare (and where “health” was in any case, still largely a mystery, and one that one had to appeal to the gods to take care of), but where there was a robust understanding of the head of the family as owing a duty to do what he could to appease the gods, we can meaningfully say that this duty was owed by the head of the family and not the state. By contrast, now that we have quite different understandings of the role of the state, of what healthcare involves, and of the role of the family and the status of its various members, it seems to me that this duty has changed and is now a duty of the state, and a duty to do rather different things (praying to the gods not being among them). So conventional understandings of things like the state and its role, the nature of the good in question, and other social roles, can make a difference to our moral and juridical duties. But the difference they make isn’t that something is required if and when our conventions say it’s required.

    There are also *certain kinds* of moral duties that seem to me to depend very much for their scope and content on conventions –more so than others. (So actually I doubt there is a single rule about how and why conventions are relevant that holds across all moral duties. Some seem to depend on conventions in an even more robust way, where the convention tells us more about the content and scope of the duty). Consider the rules of hosting, which I take to be not just part of etiquette but part of morality. (Within many cultures, hosts who fail in their hosting duties are subjected to very stringent moral criticism – if you fail as a host, you are not just stingy or uncaring, you have failed to show due regard for your guests as people, not just as “guests”). But the moral duties that attend hosts vary enormously from culture to culture. Does a host have to put out an enormous amount of food (my Greek family says yes!), or only just enough to ensure that everyone has half a cherry tomato and a lettuce leaf (some of the Oxford SCR’s would say yes to that). Does the host have to put out the best of everything they have? Does the host have to keep offering food even after the guests have declined (Absolutely, to the Greeks; God forbid, in the SCR!). Now, you might say that these conventions fall into a category that you mentioned, Victor – they are valuable in and of themselves, just straightforwardly give rise to duties. Or you might adopt David Owens’ ingenious explanation, in his recent book Bound By Convention, that it is valuable in and of itself to be bound in these ways and that’s why these special conventions, but not all conventions, give us duties. But, as I mentioned in my first post, hosting duties are troublingly gendered, bound up with all sorts of subtle forms of gendered oppression –which makes me hesitate to say it is intrinsically valuable to be bound in these ways. So I don’t actually have a good explanation of why we have these particular duties or why it seems conventions should play a special role in these cases. But we clearly think that we have them, that they are moral duties, and they seem clearly delineated by conventions.

17. To respond to one of Sophia’s questions to me, I definitely don’t want to say that under conditions of injustice we lose the ability to assess what duty requires, just that it is hard to get a unified and completely coherent view of our practical lives. I think this is as it should be – under conditions of serious injustice our practical lives don’t fully make sense, and we aren’t related to all other humans as we should be when we interact with them. (I think this is why self-deception and even delusional ideology have so much force, as we try to make sense of ourselves and interpret ourselves as roughly committed to the good, in circumstances which don’t fully make sense). I don’t at all think it’s impossible for there to be a dynamic system of duties in such circumstances, and my questions about this are not meant to be criticisms of Herman’s account. Rather, I think she presents, and makes compelling, the moral habitat view against a background of conditions that are relatively just, and that this raises the further question about what the view will say about very unjust conditions. I think these questions are crucial, and working them out is an important project – for example, what can a Kantian account say about historical injustice with respect to land in circumstances in which the theft is public knowledge? My comment about this is meant to open discussion about how to use the resources we get from Herman’s account to address further questions – rather than as a criticism of her account.

    As I read Kant, and also as I think I understand Herman, the idea that there are things we are rationally committed to willing as a public ‘we’ is linked to the idea that we can’t realize the conditions under which everyone can act for themselves, or be their own master, unless we are living under (at least minimally) just rule of law, and that we are morally obliged and rationally committed to work towards realizing these conditions. Thus I do think that under unjust conditions there is a way we are rationally committed to being related to other humans that we are not in fact in, but I think that in such circumstances we can still understand and respect their value as humans, and this will give us guidance as how to act, as will the idea of moving towards a more just condition.

    As the person who introduced the – probably unhelpful! – ideal/non-ideal terminology, I will say a little more about what I had in mind. I used the term ‘relatively ideal’ to capture the idea of that, if I understand the account, Herman’s account of the relation between the moral and the political is not that our duties depend on just any background conventions that happen to be in place (including unjust ones), but rather that there things we are required to do as a ‘we’ that form a necessary structure within which we live our moral lives. So what I was trying to get at was the idea that the interaction between the moral and the political is with features of our political lives that are normatively required. I think this is compatible with there being a lot of variety – including because of different permissible ways of realizing the requirements and also differences made by contingent features of the requirements.

18. Thanks Sophia for this terrific discussion, and of course Barbara for your wonderful book which, like Sophia, I return to again and again. I want to push back on what the two of you agree about: the responsiveness of the content of moral duties to contingencies of our social/legal world. Here it seems I am in broad agreement with Victor. Of course, as Sophia notes, there is a sense in which this idea is uncontroversially true. What the state and others are likely to do (provide healthcare, say, in Sophia’s recent example) is relevant to what I am required to do. Norm-governed behavior of institutions and people is often relevant to deliberations about what, morally, we ought to do. But I am interested in the stronger claim that law and nonlegal conventional social norms are themselves sources of moral duty, or rather just are moral duties. Barbara’s vision is that these conventional norms (subject to complex interpretation and reevaluation with the dynamic system and compatibility with innate right) are themselves part of the system of duties that make up the moral habitat. Sophia is at least in partial agreement here. I say partial because Sophia’s most recent comment (assuming another one doesn’t pop up as I write!) gives the example of duties of hospitality for Greek families. I don’t actually see this kind of case as fitting Barbara’s vision very well, because a moral habitat, I take it, is something we (the members of some political community?) all share.

    To start with law, Barbara writes that “obedience to law is a system requirement of juridical duties” (183). As she notes in a footnote on that page, there are limits: it is not “morally possible to act as the law requires” in some cases, such as “turning in undocumented workers and their children to a morally bankrupt immigration authority.” So, the thought appears to be, legal duties that are not clearly unjust (incompatible with any plausible interpretation of equality and independence?) just are (juridical) moral duties. Suppose we agree that some kind of property law is needed for us to live freely and well. It doesn’t, I think, follow from that that legal property rights are moral rights. Something in the space of morality follows: I should perhaps respect, preserve, and try to improve that useful artifact. But it is a further step to say legal duties in this space are moral duties. Law, being a set of rules designed to be enforced, must and can take into account factors that are not relevant to individual deliberation. If I do no harm to the contribution a legal rule makes to a moral habitat for free and equal persons by failing to comply with it, some further argument (turning on fairness, perhaps, or consent, and so on) would be needed to explain my moral reason to comply. Of course, it is true that general compliance with law is a requirement of law being able to do the goods things we hope it will do. That doesn’t make its rules moral rules: if most people comply out of self-interest, that would work too.

    Suppose what I have just said is wrong. There are concerns about how this view of law as a source of moral duties is to work, even on its own terms. How do we assess whether the law is just enough for it to set out moral duties? Barbara focuses primarily on content, on compatibility with innate right. But it is hard to accept that process does not matter. Kant did not limit his argument to law with democratic pedigree. And that seems in one sense inescapable, as the idea that there is no moral habitat in Saudia Arabia seems absurd. On the other hand, it seems hard to deny that when legislatures have been captured by gerrymandering and vote-suppressing minorities, and like-minded judges are on the bench (that takes a little longer), that affects the moral standing of all of law in that particular habitat, not just law concerning abortion or freedom of expression. So assessment of the contribution of law to a moral habitat seems to require a theory of proper law-making procedure, and any such theory threatens the conclusion that there is no moral habitat, because no juridical moral duties, in much (most) of the world.

    Of course legal rules may just be the expression of some deeply embedded shared normative attitudes in a particular place. And moving now back to Sophia’s Kant-neutral agreement with Barbara, it seems more plausible to me that a shared moral outlook is, without more (though subject to defeating conditions), a source of moral duties than that law is. But now I have a different concern. I agree with Sophia that Greek hosting traditions or (in an example she uses elsewhere) certain long-standing customs of certain Indigenous communities in North America seem to have a moral force as it were directly: you don’t need to argue that it’s right to stick with tradition for some reason external to the traditional outlook itself. As I have said, these kinds of cases will not be enough to get us a moral habitat which (I take it) is or should be the same for all of us in a certain legally demarcated space. If you look around the United States today, you see massive disagreements not just of political affiliation but of moral outlook. Surely not all of those disagreements are either trivial or resolvable by showing that one of the positions is incompatible with viewing us all as free and equal. This just is Sophia’s second dilemma, though I would see the worry as not so much that one person may be bound by inconsistent duties, but that each of us is bound by different ones. Sophia ends by hinting that we may have to give up on the idea that morality forms a coherent and ordered system. By pushing the convention-dependence of moral duty in this direction she is, while agreeing with Barbara in one respect, also questioning the very possibility of a moral habitat as a system of duties. The critique may be effective, but it seems to me that the fragmentation of morality into factions is a very high price to pay, and that some way of avoiding it should continue to be a philosophical goal.

19. Like everyone here, I find The Moral Habitat to be a deeply impressive achievement. It is a beautiful and conceptually powerful meditation on the intertwining of our moral and political lives. Or, as Herman puts the point: “It is only within a well-formed political space that the demands of individual morality show their value in a human life” (90). For Kantians, the book provides a highly original account of why the two halves of Kant’s Metaphysics of Morals— the Doctrine of Right, which treats legal and political duties, and the Doctrine of Virtue, which treats ethical duties and character formation—actually belong together in one treatise. But, as this stimulating exchange shows, there is much there for non-Kantians as well. I am on my third reading, and still finding new riches.

    Sophia Moreau is excited by Herman’s view that the specific content of our moral duties—i.e., what they actually direct us to do—depends on the legal, social, political institutions in which we find ourselves. But she also worries that such a view might end up inadvertently entrenching at least some of the injustices which pervade those very institutions. She develops this worry through an interesting reading of Herman’s claim that a housing crisis triggers duties of hospitality. In a society where the performance of hospitality falls to women, Moreau wonders, won’t Herman’s view that context determines duty end up entrenching gender subordination?

    In response, Lucy Allais suggests that Herman’s book may be understood as an exercise in ideal theory. As such, Herman’s view does not admit the content of unjust institutions into the content of moral duties. In this spirit, I would cite Barbara’s marvelous line that “social forms are moral accidents and have to earn their keep” (156).

    Interestingly, in Herman’s own initial response to this thread, she says that she wants to avoid the entire ideal/non-ideal distinction. And I can see this too. For The Moral Habitat continually foregrounds the way in which justice and injustice bleed into one another. For example, one of the lessons of Herman’s treatment of beneficence is that even decent moral actions can create forms of status asymmetry that drift away from justice. Conversely, the very decency of those actions is often predicated on forms of distributive injustice that make beneficence necessary in the first place. (If you were truly my equal, would you need my help?) When Herman insists that the system of duties that make up the moral habitat is a dynamic, part of what she means is that even faithful performance of one’s duties will generate drift away from justice that must in turn be managed by that very same system.

    So, I think I understand what Herman’s response would be to the worry about a kind of conformism latent in admitting the available social world into the content of our moral duties. But I still have questions as to whether Barbara has given us enough to distinguish the institutions or practices that should matter from those that shouldn’t. Throughout her book, the anchor point for the system of juridical and ethical duties she articulates is supposed to be the Kantian value of independence (roughly: a kind of basic status of the person as free and equal, subordinated to nobody else). Institutions that do not support independence should not play a role in the determination of duty’s content.

    But I worry that Barbara’s account of independence is too capacious and flexible, meaning that it can too easily accommodate her (and my) preferred set of social egalitarian institutions. As an aside, these days I actually think that Kant has a much narrower conception of independence than Herman attributes to him—which may well be to the worse for Kant! As I now read Kant, independence just involves the rights he outlines in the section of the Doctrine of Right devoted to Private Right (roughly: rights to property, contract, and some forms of family organization), as well as the public institutions necessary to make the exercise of those rights co-exercisable. Certainly not the minimal state, but not exactly Rawls either. I think the case for a robustly equality supporting, redistributive state is actually quite hard to make out on Kantian lines. But to the extent that one can make out some version of it, this may actually be a dialectical strength insofar as one would be beginning from quite social justice-unfriendly premises. (Perhaps Kantian political philosophy is what is called for by our fallen times.)

    To focus the issue just a bit: Herman’s Kant thinks that various forms of property inequalities and asymmetries in social status are clearly at odds with the value of independence. I am less sure. To connect this with Fabre’s helpful example of landlord/tenant laws in France vs. England, I want to know why exactly the value of independence rules out England’s relatively pro-landlord, no-fault eviction policy and clearly supports France’s more tenant-friendly moratorium on winter evictions. In the face of some views (arguably Kant’s own!) which connect independence very strongly with private property rights, I am not sure that appeals to the value of non-subordination suffice to make the case.

    Nevertheless, despite my worries, it is a testament to Barbara’s fabulous book that it raises in such sharp form the question of the ultimate values that should underpin our commitment to a morally healthy and political just world.

20. I want to thank Sophia for her thoughtful comments, and for setting this interesting discussion in motion. And my thanks as well to the those who have responded so far. The debt I owe Barbara is distinct and deep: For several years I have been working on the project of understanding the constitutional responsibilities of governments to the liberty-bearing and equality-conferring commitments of their constitutions through the lens of imperfect constitutional duties and I have found that perspective extremely helpful. In the course of this work, I have found that considering the case of imperfect constitutional duties, in turn, helps to understand the nature of imperfect duties more generally. In these comments I mean to address the general moral landscape with its imperfect duties, but my comments are informed by the constitutional duties of states.

    Sophia worries that while Barbara strives for a system of coherent moral values, this implies a harmony of moral duties while the imperfect duties that Barbara invokes may produce messy moral conflicts. I want to offer a distinction between the harmony of values in a coherent moral system and the messiness of the projects we undertake in service of those values. One might think that if we have our values straight, our projects to realize those values will follow neatly. Ronald Dworkin did. He argued that if we had the best view of rights, conflicts among them should not occur, given the “unity of value”. We should be able to work our way up to founding value from which the subordinate conflicting values flowed and once we were there, a full understanding of the common founding value would resolve the conflict. Concluding too early that there was a conflict of rights was a form of laziness.

    But the projects for which we are morally responsible involve choices among inconsistent strategies and inconsistent intermediate states of affairs; these choices thus involve trade-offs, some of which are costly in the coin of the value to which the project is devoted. And projects devoted to values in perfect harmony with each other may sharply conflict because the common resources available to advance those projects are limited, and so pursuit of one of those projects bears a zero sum relationship to the others. The values for which we are responsible are, we can hope, coherent and ordered, but the projects of realizing states of affairs in which those values are well-realized involve choices among conflicting strategies, conflicting constituencies, and, in resource-limited circumstances, conflicting projects. This is what makes the duties associated with the pursuit of these values imperfect. Think of the choices that are involved in the imperfect duty of being a responsible parent, morally obliged to keep ones children safe and to enable them to flourish.

21. Thank you all so much for your important and beautifully articulated thoughts, both about Barbara’s view and about my concerns and questions. I wish I had days instead of hours to think about them –though some of you, like Liam, probably think it’s a good thing I don’t!

    Here are a few thoughts. Paul, you have given such a helpful, nuanced account of the way in which our juridical duties shape our moral duties. And Lucy, thank you for clarifying your thoughts on Barbara’s views about moral reasoning under conditions of injustice. Rafeeq, thank you also for summing up some of the disagreements in this exchange so eloquently and for adding the thought that Barbara’s conception of independence may be too capacious.

    I can’t add much to what the three of you say. Though I wonder whether your thoughts, Paul, might help to address Liam’s worry about the role that our actual laws play in Barbara’s account. I don’t think that it’s Barbara’s view that laws are relevant to our moral duties because whatever the law lays down as a duty becomes a moral duty as long as that law is just. (For the record, that’s not my view either). Some of Barbara’s discussions, like her discussion of the role of property rights and contract law, can give this impression. But I think the idea is rather that we require some system of property rights and some way of enforcing contracts as a matter of public right, so that the state can secure the conditions necessary for the freedom of all of us, seen as equal moral agents. Not all laws secure the conditions necessary for the freedom of all of us; presumably those that don’t will play no different a role in determining our moral duties than would any other social convention. Moreover, I’m pretty sure some laws will help to secure these conditions even if they are *not just* –simply because we currently live in situations of injustice. Take a case I discuss in my book, Faces of Inequality, involving the French government’s ban on the sport of “dwarf-tossing,” where customers at pubs take turns seeing how far they can toss “little people” or those affected by dwarfism. The ban was challenged by a little person, who said the ban demeaned his dignity. But of course the government’s aim was to stop the public from thinking of little people as objects that could be tossed. It’s unclear to me whether the ban is just or unjust, but if it’s unjust, it’s an example of a kind of temporary injustice in one part of the legal system, a part that is arguably necessary and so might well generate moral duties, because it’s ultimately designed to help nudge us towards a just state of affairs, one in which little people can actually obtain regular jobs and nobody finds it fun tossing them.

    Helga, thank you so much for your many reflections. I agree with you that Barbara’s rich analyses of examples are a wonderful and illuminating feature of the book. And Helga, I appreciate your adding to the discussion the further, really interesting question of whether we need more theoretical resources to help us understand Barbara’s methods of analysis. I think I’d come down on your side of this disagreement and push for a more explicit statement of her methodology. And I think you’re right that having such a statement would be helpful especially when we are thinking about morally complex cases involving deep and systemic injustices. It might seem that such deep injustices are these easiest ones for a moral argent to deal with –they are so obviously wrong. But I think it is often hardest to know what our duties are in such cases, and how to deal with the complex interactions of different duties and the many sorts of injustice that they involve; so I would, like Helga, welcome some methodological assistance here! Think of the Mennonite women whom I mentioned yesterday in Polley’s film: they have been subjected to an obvious set of injustices, as well as a horrific set of crimes. But should they stay and fight, or should they leave? Is violence justified in face of such severe injustice? Is fleeing morally justifiable, or is it a form of moral cowardice? And what should they do about their teenage male children? How could they justifiably leave them behind; but then again, how can they construct a new moral world in which women are full citizens if there are young men in that new world who still believe they are not? The film is wonderful partly because it doesn’t try to give easy answers to these questions; but I think a more explicit statement of the method we should use to think through such questions would be helpful. I think also, in this connection, of a legal project I’m currently involved in that brings together scholars and activists working on gender equality from both developed and developing countries. As part of this project, we have collectively wrestled with the question of what the moral duty of a legal academic or political activist is in those societies where, as matter of law, families are permitted to arrange marriages for girls as young as 10, and where many still think of women as the property of their husbands. Of course we take it as unquestioned that this is a huge injustice, that nobody should be another person’s property, etc. But if our question is: what is my moral duty as an activist or scholar in such conditions of injustice, and how can I relate to the people whose practices these are, as equals, rather than as someone patronizingly telling them they are wrong, it becomes very murky. It’s great to talk of being an agent of moral change, but how does one do this consistently with treating other people within an unjust system as one’s *moral equals*? I think that’s often a very difficult thing to figure out. I don’t think of the problem here as being only a matter of finding the best means; it’s a deeper problem about how one relates to others and what the terms of that relation ought to be. I think some more explicit methodological reflections might help here.

22. I also want to reply to Victor’s example of consent to sex in circumstances of injustice, and to Liam’s point about fragmentation and Larry’s related point about the harmony of values in a coherent system.

    Victor, I think you’re quite right that many of our current moral rights and duties arise in response to injustices, and that one way to think of our project in shaping a moral habitat is as a project of resistance –one is often trying, as a moral agent, to challenge the deeply problematic expectations and social conventions that perpetuate injustices. And thank you for the example, which is really fascinating and just the kind of moral dilemma that I was hoping we could talk about. It might be, as you say, that women have a right to lie about their virginity in deeply sexist societies that prize virginity, and that we need to rethink common assumptions about when consent is valid in light of this and allow that their partners’ consent is valid because of the background injustice. I think Barbara would say that her theory has ample resources to acknowledge that often moral rights and duties do arise in response to injustices, and can change as those injustices either increase or decrease (that’s supposed to be part of the point, I think, of it being a dynamic system of duties).

    But I think Victor that your case is nice partly because it stretches the Kantian framework a bit. Certainly the women in this example are not treated as equals by their society; but even if we acknowledge that, given the injustice, their partners’ consent is valid, I’m not sure that means that their partners are being treated as equals either. We seem to be in a realm where the background injustice is such that it just isn’t possible for *anybody* to be each other’s equal –if that makes sense! So what do we then do? How can the underlying values that are supposed to shape public right help us in this situation, where we seem to have departed so radically from these values? I think that’s what I meant earlier, Lucy, when I interpreted your remarks as meaning that in circumstances of fundamental injustice, it isn’t clear what Kant or Barbara’s frameworks have to say to us.

    Finally, both Larry and Liam raise an important worry about what Liam calls “fragmentation.” Larry, I really appreciated your lovely distinction between “the harmony of values in a coherent moral system” and “the messiness of the projects we undertake in service of those values.” I certainly agree with you that our pursuit of value is often messy, for many of the reasons you mention: scarcity of resources across all of us, many demands on each person’s time, different paths needed to pursue different values, etc. But I think you are more confident than I am that our system of values ought to form a coherent whole. I don’t think there is a “sovereign virtue” that ensures that all of our other values are neatly ordered under it. And although it may be true that concluding too early that there is a conflict of rights or duties is, as you say, a form of laziness, I’d argue that simply assuming that all of our values will, if properly understood, neatly arrange themselves into a tidy system can in its turn be –I don’t want to say lazy (Ronald Dworkin was not intellectually lazy, even though he had a lawyerly talent for manipulating arguments to his own advantage!), but it can be complacent and a sign of privilege. It is, after all, mostly more privileged moral agents who find themselves in the position where their different duties neatly align –for some of the reasons Victor gives, because the relevant social conventions have been developed with their needs and interests in mind. The kinds of things that I’ve talked about elsewhere as “objectionable obligations” are standardly borne by social groups who are underprivileged, marginalized, and often invisible. I don’t think Barbara assumes that our moral values need to form a coherent whole; and I obviously don’t want to accuse anybody of thinking of moral dilemmas only from a standpoint of privilege. But, as I’ve thought about Liam’s and Larry’s worry about the fragmentation of our duties, I’ve been struck by the fact that, for so many people who are underprivileged, this is just the state in which they live. There’s a beautiful 6 part motet by the Composer Charles Stanford, “Beati quorum via integra est” –which means something like ‘blessed is the one whose way is whole’. Musically it’s stunning, but every time I sing it, I think: “Well aren’t they lucky, these people whose way is whole, because mine is certainly not! And how convenient, that those who are *already* privileged enough to walk the straight, coherent path instead of being always torn between duties are now privileged *again* by being blessed!” (As an aside, I do wonder sometimes whether, although we do moral philosophy without appealing to religion, there aren’t still vestiges of religious assumptions in the way in which we approach the moral domain, and I wonder whether our insistence on coherence and unity isn’t one of them). Now, one might say in response to this that this doesn’t show that we shouldn’t aim at coherence; it just shows that, in an unjust world, some people more than others will bear the brunt of the injustices. And perhaps, Liam and Larry, you’d say that once we progress further towards a just society, then those who currently stand under unfair duties will not do so anymore, and their moral lives will contain fewer conflicts –at least, fewer conflicts between duties, though still many of what Larry calls the “messy projects they undertake in pursuit of those duties.” But I’m not sure. I wonder whether, even in a more just society, there won’t always be conflicts between duties. Certainly this is what a focus on role morality suggests. And I wonder why we assume the persistence of conflicts between duties would obviously be a bad thing. Of course it would be better to eliminate *injustices.* But perhaps some *conflicts* between duties are inevitable, given the many things we value, the many different ways in which our legal institutions and our social conventions interpret and express these values, and the many roles these institutions assign to us.

    Thanks again so much to all of your for your deep insights; to Victor and the PEA Soup blog for making this discussion possible; and to Barbara, for a truly wonderful book that I know we will all continue to learn from.

23. My warm thanks to Sophia for setting this discussion in motion and carrying it on at such a high level. And much gratitude to the rest of the participants for pushing ahead on the non-Kantian but Kant-inspired theses of the book; there is clearly a lot of work to do. I have lots to say to all of you, but I will restrict myself here to only a few more thoughts.

    A fair amount of worry about letting context and convention affect the content of duties comes, I believe, from a commitment to giving pride of place to perfect duties: clear action directives, holding without exception (or maybe just a few, for emergencies). Suppose you thought of duties, not as action directives, but as *deliberative* directives. The duties are then resultants of a form of practical reasoning, with fundamental values (or value principles) as premises. Some action-types will be ruled out as unavailable from the fundamental premises. You could then have the strict limitations one might want from perfect duties, without their (to me) implausible logic across the range of cases they are supposed to regulate (for more on perfect duties, see TMH 5, 104-110). A lot depends on the fundamental values that set the premises. I regard them as objective, but of a nature that requires interpretation (part of what it is to be moral is to be engaged in this interpretive project, more or less depending on what the world and other people present). It does not *follow* from a concept’s needing interpretation that the concept itself is subjective or vague. Imperfect duties will make plain sense on a deliberative model given sub-premises about their point and purpose that call for discretion in judgment about what to do. Larry’s reminder of parental duties is apt. Not understanding how principles that follow from different sub-premises don’t obviously form a system doesn’t risk the unity of science (epigenetics lives with quantum physics), they set a long-term task. I think we should be open to some parallel project for moral theory.

    I’m glad Sophia brought up Sarah Polley’s Women Talking. One of the things that I think comes with accepting that there is a hermeneutical project at the heart of morality is the recognition that in moral judgment and action we need to be articulate, to ourselves and to others, about what we take to be going on at all levels. Plainly, the women depicted in Polley’s film are oppressed, but they are not morally empty or lacking moral agency: they know more than they are free to put into words. Their talking together makes the wrong visible in their lives, not just the fact of it but the ways it shapes and distorts and has corrupted them. Their talking gives the women’s agency new moral content and so more choices, though hardly choices without terrible burdens.

    This connects with Helga insistence on the importance of first personal accounts – that they give us something about lived wrongs that third-personal examples cannot. Testimonial authority does not, however, abrogate the need for a moral pedagogy. In general, the more we are captive to moral conventions, the greater the need we have for moral training in interpreting experience and talking out what we are doing so that reflective responsive speech is part of our moral practice (the idea of “colloquy” captures this).

    The topic of consent is of special interest, since it is a part of moral talking, though it’s not always innocent, as Victor’s example makes clear. I’m uneasy with the thought that in an oppressive sexual order one might lie as an entry to consensual intimacy. An additional burden that the injustice owns. Much to think about.

    Hospitality is a rich vein …as Sophia describes it, how could it not be. But the hospitality conventions strike me as a sub-genre of manners, compelling if they are your vocabulary of social literacy, kind of bizarre (sometimes) if they are not. Social literacy, I would say, is a morality facilitator, not of moral value in itself. The worries about anomie and bowling alone live here.

    Liam posted as I was writing this. I want to say that we have a moral duty to respect reasonable laws, and often moral as well as legal reason to obey them, but granular law is a set of means that draws its authority from the moral work that the juridical system does, not from what the item of law is, in itself. This can be hard to see since we often have moral duties that shadow legal requirements, sometimes going beyond them, though some of the content they have is because of what’s in the law (I think parental duties are like this: there’s more on this in TMH 184-185 and the theory of the moral shadowing at 102-112). I think Liam and I are in agreement here. Liam worries that there may be no moral habitat in some places; I argue in TMH 112-120 that there must be provisional universal rights (or basic moral rights) that matter even in an unjust social order, though in different ways than they do for us. (The field research of anthropologist Sally Engle Merry showed pretty convincingly how acquaintance with the very idea of human rights transformed the sense of agency of impoverished, non-literate, previously colonized women.) The question often is how to honor these rights in a respectful way where an injustice is grave (child marriage is my example) and we cannot know what a just order would look like starting from where people currently are (where they would go if they would). So long as we are not seeking a general answer, the problem is hard, not obviously impossible. The embeddedness of the moral in the local is not an obstacle to correct moral views that should be removed: it has to be part of the materials of moral thinking. We don’t yet know how to do that.

    About the anxiety of difference and fragmentation that has emerged in this discussion – that because of different conventions and histories, social practices that inform moral outlooks, the divide is intractable, making the moral habitat an idea without a sufficient degree of reality (ideal in a bad sense). My response isn’t pretty. It may be that we can’t have everything. That is, traditions can’t really obligate (our relation to them is about something else) which makes them vulnerable to moral criticism, perhaps outright rejection; the material for habitat construction can’t involve views that resist basic moral terms (so not every sincere value belief gets in); we should give up a view of ourselves as receptacles for moral truths which we can (ideally) enact through our dutiful actions, elegantly and without conflict. I think that if one is tempted by the thought that the point and purpose of morality is the permanent project of habitat construction, one should be wary of moral-theoretic questions that smuggle the contraband back in.

    Thanks again to all of you.

24. Thank you Barbara for this last comment, which gives us so much to think about. Your discussion of the role of talking in Women Talking seems both exactly right and a perfect example of how deeply you see, when you look at a moral problem. Thank you for that too.

25. Just to be clear: The claim on behalf of the unity of value, and the insistence that we should be able to reach a point as we ascend our values where conflict is resolved, along with the entreaty not to be lazy, I meant to attribute to Dworkin. And since Dworkin meant this to apply to the concrete project of constitutional law, I think he was making the mistake of eliding our values with our projects in service of those values, As to the harmony of our values, I am willing to be agnostic. But some, perhaps many of the examples of moral conflict may be best understood as project messiness, not value clashes,

26. Thanks so much to everyone for a brilliant discussion, and especially, first, to Barbara and Sophia. This thread is now closed for comments.

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