In this new series, PEA Soup is hosting book discussions in which philosophers introduce a book that influenced them or that they found important. This is the second discussion of the series, the first was back in April with Daniel Viehoff on Joseph Raz’s “The Morality of Freedom”.
Without further delay, here is Sophia Moreau on Barbara Herman’s “The Moral Habitat”:
Barbara Herman’s book The Moral Habitat is a remarkable achievement. Those who approach moral, political or legal philosophy from a Kantian standpoint will no doubt find it fascinating and important because it offers a revised picture of Kant’s ethics and of the relationship between the moral and the juridical –a picture that is at once intricate and beautiful in its details, with many contextually rich discussions of particular duties, and yet at the same time wide-ranging in its scope, spanning imperfect moral duties such as gratitude and due care, imperfect juridical duties such as the duty to repair structural injustices, and a multi-layered explanation of how different duties depend on each other and on us, forming a “moral habitat” that is shaped partly by us.
But part of what makes the book remarkable and so illuminating, in my view, is everything it offers to those of us who don’t approach morality or the law from a Kantian framework, or to those who, like me, often find Kantian arguments compelling but are skeptical that any one system of thought could ever capture the fullness of our moral lives. For many of the lessons of the book can be appreciated even by those who do not accept the particular system of duties that Herman develops or the particular Kantian grounding she gives to it.
In this post, I want to focus on just one of these lessons, and I’m hoping we can have a conversation about it that includes not only philosophers with Kantian leanings but also those with very different sympathies. It’s not the most important lesson of the book, but it is the one that I keep coming back to, opening the book again and again to learn more about. And it’s a lesson whose implications I think many moral and legal philosophers, whatever their theoretical leanings, are trying to develop in their own work. This is that, as 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 thinking in depth about 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).
Now, taken in one sense (not the sense I am going to explore!), this claim is indisputable. Of course what we have a duty to do depends on empirical facts about our lives and the world around us. Whether I have a moral duty, right now, to look after my dying parent depends on whether I have a dying parent. But this is not the interesting version of Herman’s claim. The point is not that whether a duty applies to us now depends on empirical facts: everyone agrees on that. The more controversial and interesting claim is that it will never be possible to say what many duties require, in abstraction from a particular society and from the set of social, political and legal institutions that structure it. We can, in abstraction from these institutions, grasp each duty’s broad purpose, or what Herman calls the “value” that underlies it; indeed, this value (or values: there can be more than one, for any given duty) is partly what guides us in the case of imperfect duties. But what many duties require of us will also depend on things like custom, existing laws, and of course, in the case of imperfect duties, on the agent’s own moral judgments and her attachments and projects.
One of the surprising and, I think, very fruitful implications of this picture is that it makes our moral and our legal duties interdependent. Many of course maintain that our legal duties depend on our moral duties. Herman argues, further, that the shape and extent of many of our moral duties depends on our actual legal institutions and on the kind of world these legal institutions and the concepts they employ have built for us.  And this is true even if that world is only partly just.
I want in what follows to raise two dilemmas that open up when we take seriously this more controversial version of the claim that the content of our moral duties is empirically responsive. I want to emphasize that I think these two dilemmas are ones that all moral theorists need to wrestle with in one form or another. They are real moral dilemmas, not artifacts of the particular way in which Herman conceptualizes morality. So the point of what follows is not to identify flaws in Herman’s theory but to shed light on some very real moral problems.
First, there is what I shall call the problem of unfair obligations. This is best illustrated through a particular example. Let’s take Herman’s discussion of the right to housing. Herman notes that what the right to housing is about, and hence, what it requires us to do, depends in part on certain values that are not given by our society but are instead given by our nature as moral agents –in her view, the values of “independence” and “equal status.” But in her view, the shape of the right to housing in a given society also depends on the ways in which these two values are interpreted within that society. So, for instance, “in some places, extending hospitality by taking in any stranger in need is one way the value of having a home is expressed”; while elsewhere, “the value is taken to lie precisely in being able to exclude others from one’s private space without further justification” (p.196). Presumably, then, in the former societies, greater emphasis will be placed on the equal status of the stranger and on the homeowner yielding some of her own independence to the stranger’s need for a temporary home and for recognition of their equal status. In such societies, the individual’s duty to provide a home for others will be somewhat more demanding. By contrast, in societies that prize being able to exclude others from one’s private space, the balance will tilt more towards protecting the independence of the home owner. Their duty to provide a home for others will therefore be less extensive than it would in the former societies (but, given Herman’s views about the interdependence of the public and the private, we should, I think, suppose that the public duty to provide housing will correspondingly increase in such societies). All well and good. But there’s a dilemma lurking under the surface here. It’s all very warm and cosy to talk of societies in which hospitality includes taking in strangers. But, given that most societies are patriarchal, it will most often be the women in these homes who are burdened with the task of looking after these strangers. And of course, for these women –and, some feminists would argue, for many women– home is not always “a place where a person . . . can lead a reasonable, independent life” (p.196) or “a place where they can secure [equal] civic status” (p.204). A different part of the housing story, one that doesn’t get foregrounded in Herman’s discussion, is the part in which homes are sites of gendered domination, oppression, and indoctrination. The problem, as I see it, is that once we give conventions and interpretations of social roles such as “host” and “property owner” some role in specifying what our moral duties require, it is going to be very difficult to disentangle the just parts of the relevant conventions and roles from the unjust and to allow that only the just parts can shape what our duties require of us.
I do not think that a viable solution is to ignore the role of social conventions and actual legal institutions in shaping our moral duties. But it seems to me that, once we give them some role, once we allow that our messy, often unjust conventions and institutions can make a difference to what we have a duty to do, then we open the possibility that sometimes it will be unfair or in some other respect morally problematic that we stand under a certain duty. In the case of the right to housing, as interpreted in a society with expansive hosting duties imposed largely on women, the unfairness seems to be of a kind that might compromise one of the very values that the duty was supposed to protect: the value of equality. I have written about this problem elsewhere and I am inclined to think that it reflects a very real moral dilemma, not a flaw in Herman’s theory. The greater the role for social conventions in shaping our duties, the greater the potential for unfair or morally problematic obligations; but if we retreat to the position that, to the extent that such obligations are inconsistent with underlying values such as equality and independence, they are not genuine obligations, then I am unsure just how much of a role we will end up giving to social conventions within our moral theorizing. Many social conventions are, after all, deeply gendered, or racialized, or class-based, or bound up with a variety of other sorts of injustices and unfairness. I am curious to know what others think about this dilemma, and whether there are other discussions within moral or legal philosophy in which a version of this dilemma arises.
The second dilemma I want to raise is related to this first one, and we can call it the problem of conflicting obligations. Once we allow that 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 to me that the set of duties we stand under will appear as such a coherent, ordered system. Herman is careful always to refer to the set of moral and juridical duties that bind the people in a given polity as a “system.” I take this to mean that she sees it not just as a set, but as a set that is ordered and internally consistent, because the different duties contained within it are all shaped by the same fundamental values. However, the more we give a role to social conventions and actual legal institutions in shaping a given society’s interpretations of those values, the more likely it seems to me that we open the door to conflicts, both between different duties and between different interpretations of the values underlying those duties. To return to the example of the right to housing, it isn’t clear to me that the interpretation of equality that is necessary to make sense of the imperfect juridical duty to repair structural injustices will be consistent with the interpretation of equality that we give when we interpret the right to housing in a culture that has a very demanding and gendered conception of hosting. I might be inclined in such cases just to bite the bullet and accept that different duties may sometimes presuppose different and even conflicting conceptions of the same value and that sometimes we may find ourselves bound by inconsistent duties. But this may come at the price of some or all of our moral duties looking arbitrary, or at any rate less well grounded. Certainly, at various points in the book, Herman seems to me to take pains to state that there are no conflicts and no inconsistencies between different duties or the rights of different moral agents, even in areas where others have argued there are. I have found myself wondering whether she really needs to insist that there is no conflict. For example, although Herman claims that “respect for individuals’ faith-based values is consistent with reproductive freedom for women” (p.176), many of the current politically charged public debates about the extent of various kinds of religious freedom and the scope of women’s rights suggest there is more of a tension here. Perhaps we do not need to deny this? So the problem of conflicting obligations is: once we recognize Herman’s important insights into the social factors that shape our moral duties, can we retain the idea that morality forms a coherent and ordered system? Do we need to?
 A point also explored by Thomas Nagel in his forthcoming monograph, Moral Feelings, Moral Reality and Moral Progress (Oxford UP, 2024).