Foundations of the Moral Order

By Colin Turfus

Part 2: Rethinking the Moral Order

Part 1 of this essay dealt with the fundamental principles of the grand political project which is the European Union, that is solidarity and subsidiarity, and at how those principles have been either undermined by the nature of the project or remain unimplemented. In part 2, the deeper tradition of European thought is explored for its contribution to an examination of the Good Life, and a re-examination of the Aristotelian idea of telos considered as an alternative to the impasse of human rights to which Europe has committed itself.

The Limits of Our Knowledge?

The epithet attributed to Albert Einstein that the more he learned the more aware he became of how little he really knew has been oft repeated since, and probably also before, he pronounced it! It is a thought-provoking and humbling perspective on humans’ place in the universe. Although the observation was originally made in the context of scientific knowledge, it might be argued that it is more applicable to the social sciences and philosophy, particularly in relation to questions about how we should live our lives and order our society. For these questions have been debated down through the centuries and whatever wisdom is uncovered in the process invariably has a precarious existence as the reversals of fortune turn yesterday’s heroes into tomorrow’s villains, and vice versa.

At the heart of this questioning is the search for the foundation of value, or values. Its heyday was probably the Enlightenment, with numerous philosophers, most memorably Bentham, Kant and Hegel, looking to set out a universal basis while others, in particular David Hume, argued for the impossibility of this task. The interest in a universal foundation for values continues to this day notwithstanding that the clear trend in modern philosophy, and indeed society, seems to be towards an ever-increasing proliferation of mutually incompatible value perspectives competing for attention.

One of the most influential attempts historically to address this problem (or rather a previous manifestation thereof) was that of Aristotle. He, in his Eudemian Ethics, identified the good for a person with the pursuit of his (or her) telos – an ultimate immutable set of aims and goals toward the fulfilment of which a person moves by nature. For Aristotle, one’s telos was fixed as it were biologically: what Marx might later have referred to as “species-essence”. The major shortcoming of Aristotle’s account of ethics was of course seen subsequently to be its rootedness in 4th century BC Athenian society. Even relative to the perspectives in neighbouring Greek city-states, there were significant differences in accounts of what the telos consisted in. Also Aristotle was unable to attribute to slaves the same telos as he counted free Athenian males as possessing. So it was that Aristotelian philosophy has ultimately been judged to have failed in its attempt to identify a universal conception of “the good”.

However, his views were to enjoy a revival across Europe in 13th century European society following the rediscovery of classical Greek texts through contact with the Islamic world. Here the homogeneity of perspective that had been imposed by the Roman Catholic Church in Western Europe and the widespread influence of Augustinian theology made the situation ripe for a revival of Aristotelian ethics. The successful integration of Aristotelian philosophy with the prevalent Augustinian theology has been attributed to Saint Thomas Aquinas (1225-1274). He identified the human telos with the fulfilment of the specifically Christian virtues of fides (faith), spes (hope) and caritas (love), and the Aristotelian virtues of sophia (wisdom), andreia (courage), sophrosune (prudent caution) and dikaiosune (justice).

The hegemony enjoyed by Aquinas’ synthesis was itself of course destined not to last, albeit that many adherents both of the Augustinian school and of the Aristotelian tradition did come to make their home together for a time in the grand edifice Aquinas had constructed for them. The rise of humanism in the ensuing Renaissance starting in the following century laid the grounds for an alternative approach. This led in turn to the Enlightenment and its grand project to refound moral science on a purely rational basis and, by the time this had run its course, that grand unified world view which had been Aquinas’ legacy stood in ruins. The story has been told many times and does not need repeating here. The accounts given by Alasdair MacIntyre in his trilogy of monographs on the subject [1, 2, 3] are, in this author’s opinion, particularly incisive and we shall return to them below.

Kant and Human Rights

So we return to the question of whether we have in the last few hundred years made progress in the quest for a universal foundation for human values or merely become more confirmed in the intractability of the project. One would have to be forgiven on the basis of surveying the detritus left in the wake of the philosophical critiques and counter-critiques of all the big ideas from the Enlightenment onwards that it should be expected there is not much left of the original edifices. But that is not the whole story. For while postmodernism has turned the focus explicitly away from unified interpretations of the human state towards group narratives unburdened by the onus of any requirement for mutual compatibility, a metasystem has yet managed surreptitiously to establish itself as the backdrop against which incompatible claims can look to be mediated.

The foundations of this metasystem I would identify as Kant’s categorical imperative, the first formulation of which impels us to “Act only according to that maxim whereby you can at the same time will that it should become a universal law without contradiction.” Although this principle has not been able to give rise in practice to a universal foundation for ethics and human values, it has been successful in providing a philosophical underpinning for the establishment of human rights. The Universal Declaration of Human Rights (1948) is premised on a Universalist claim that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” The charter has been enacted and ratified as international law in most countries, most notably in Europe through the European Convention on Human Rights.

I believe a consequence of this has been that ethical questions which relate to rights protected, or deemed to be protected, under the European Convention are no longer addressed through philosophical considerations but through human rights law, i.e. legal considerations. This has its attractions in facilitating (or imposing?) a consensus solution to what might otherwise be an intractable ethical dilemma. But it has at the same time a number of significant drawbacks which have become evident in recent years.

* Incompatibilities have arisen between rights wherein some are necessarily deemed to have priority over others in certain contexts. In particular, it is often argued that freedom of conscience is protected only insofar as it is not used as a justification for what is claimed to be an infringement of the rights of other individuals or groups, in particular if discrimination is alleged on the basis of some protected attribute such as gender or sexual orientation.

* What were originally seen as requirements constraining the behaviour of states and the upholding of the rule of law have increasingly encroached into the private realm to the point where private thoughts have to be policed in order that it can be determined whether disregard for a protected right motivated an (otherwise legal) action. Such could of course arguably be construed as an infringement on freedom of thought/conscience. But it would be unwise to imagine that such a defence would be upheld in a court of law or even protect one from arrest if a complaint is made to the police.

* The effective removal of private moral intuition from that part of the ethical sphere deemed to be under the jurisdiction of human rights has meant that a distance has opened up between the two to the point where individuals can find that conformity with human rights legislation can bring them into conflict with their conscience or vice versa.

* The increasing complexity of human rights law has meant that it is not possible for individuals to know definitively which behaviours are compatible with human rights and which not without a court ruling. The backlog of cases waiting to be heard by the European Court of Human Rights makes the establishment of a decision a lengthy and time-consuming procedure.

* Two further consequences of the previous point are that the occupation of the moral ground through use of human rights law can become the province of the rich and powerful; further, we are all (governments included) likely to feel compelled to make conservative interpretations of human rights law on the basis that facing and potentially losing a challenge in court can be extremely expensive and result in significant loss of reputation.

* There have been frequently repeated allegations of judicial activism laid against the European Court of Human Rights. Court decisions to prevent extradition of individuals charged with terrorist offences to the US and other countries and to require that voting rights be afforded to UK prison inmates have in recent years caused particular public outrage. See [4] for a description of how the court is able to exert its influence despite its limited power to enforce its decisions, and how it is able and likely to exert greater control over states with better human rights records. Within the European Union, the problem is compounded by the role of the European Charter of Fundamental Rights which sets out rights similar to but further-reaching than those of the European Convention. The former is under the jurisdiction of the European Court of Justice which is widely recognised as having an activist socio-political agenda exceeding the scope of that pursued by the European Court of Human Rights. See for example [5].

* Non-ratification in Islamic cultures on the basis of incompatibility with Shariah Law can lead to and has led to tension and potentially intractable conflicts with Islamic migrants in Europe. Interestingly the experience of countries such as France and Britain which had a substantial degree of immigration of Muslims a generation ago report that the tensions resulting from issues around incompatibility of local law with their interpretation of the requirements of Shariah law are more of a problem with the second generation than with their parents’ generation, despite the fact much accommodation has been made in the meantime.

For these and other reasons there is a growing frustration with human rights legislation and courts as an effectively unchallengeable means of determining the ethical foundations of our society and shared moral life.

The Good Life Revisited

So, if as I have suggested there are indeed grounds in this postenlightenment era for making new sense of Aristotle’s notion of a human telos, how reasonable is it to take the next step of arguing that this telos can be given content in such a way as to apply in a general or universal way to humans as a species, rather than separately to each individual person?

The first and most obvious challenge we must confront is the fact of the diversity of alternative standards of justice and right which have been put forward since the inception of the Enlightenment and even before. Some of these were radical attempts to argue from principles of pure rationality. Others sought to justify current practice and belief. Many sought to supplant the need for theistic belief in arriving at answers to questions of the good. Others again sought to prove the necessity of religious belief in finding such answers. What emerged from the successive failures of each attempt to overcome the limitations and shortcomings of its predecessors was a widespread recognition of the impossibility of any such enterprise ever succeeding in achieving a definitive victory, not over all of its rivals, but even over one of its rivals. This is the problem of what MacIntyre refers to as incompatibility and incommensurability [4]; that is that, although in terms of a tradition of inquiry A it may be possible to show that the adherents of tradition B are in error on a particular point, it may be equally possible to show, within the scope of tradition B, that it is precisely B’s rivals who are misled by the fallacies implicit in tradition A. Worse, it may be that adherents of tradition A, for reasons of differences of language, cultural background, etc. find themselves simply incapable of comprehending what it is the adherents of tradition B are trying to say to them. (To illustrate that this is not a trivial problem I would cite the fact that Roger Scruton, one of the most eminent conservative philosophers in Great Britain today, feels precisely this way about the existentialist philosophy of Heidegger [6, p. 260].)

Such incompatibility or incommensurability is a serious obstacle to our present project, although not, as MacIntyre [1] has shown, an altogether insuperable one. For Aquinas, in his grand synthesis of Augustinianism and Aristotelianism discussed above, was able to resolve an apparent dichotomy and show Augustinians to their satisfaction how his reinterpretation and expansion of Aristotle’s philosophy was able to resolve problems which they had previously had to view as intractable from within their own tradition and vice versa (see [2] for details, in particular Chapter X, “Overcoming a Conflict of Traditions”). This offers some grounds for hope as it indicates that, even in the face of myriad conflicting mutually incompatible claims, it may yet be possible to maintain a coherent notion of progress in moral science.

Nonetheless, since such successes proved to be few and far between, the conclusion which has widely been drawn from surveying the fruits of the Enlightenment project is that it was fundamentally misconceived and that the best we can realistically hope for is the establishment of a level playing field upon which advocates of rival versions of the good life can compete with one another for power, influence and adherents – the so-called “liberalist” position. But MacIntyre is right, I believe, in pointing out [2, pp. 326-48] that, in the absence of any consistent justification for itself or of self-evident principles governing how a truly liberal régime should be operated, liberalism itself has difficulty in refuting the allegation that it is no more than one other tradition of inquiry among many competing versions, to whose validity there exist no particularly compelling a priori reasons to give one’s assent. He reserves special criticism for that most celebrated creation of this tradition, the so-called “liberal university”, whose introductory courses on “Great Books” he characterizes as not a “reintroduction to the culture of past traditions” but, on account of their prior commitment to a level playing field, “a tour through what is in effect a museum of texts, each rendered contextless and therefore other than its original by being placed on a cultural pedestal” [2, p. 386] (for his counterproposal, see [3, pp. 216-36]).

But I digress. The important question we should address is what to make of this antinomy with which liberalism confronts us. One response is that initiated by Friedrich Nietzche, which MacIntyre has variously dubbed the “perspectivist” fallacy [2] or “genealogy” [3]. This view has in recent times achieved some notoriety through its popularization in the writings of the so-called “postmodernist” school of thought. Its proponents hold that all attempts, liberal or otherwise, to give an account of “the good life” are misguided since there is and can be no such thing as a concept of the good life for people as such; indeed there is not even any such thing as the good life for any one person, except for what that person deems to be such of her own volition. It is MacIntyre’s [3] main thesis that both the protagonists of the Enlightenment project and the proponents of the genealogical view participate in a common fallacy, namely the view that values and moral perspectives are to be deduced out of abstract principles of rationality: the Enlightenment illustrates the impossibility of ever fulfilling such a goal; genealogy draws the apparently justifiable conclusion therefrom that there are no such things as values-as-such.

It is MacIntyre’s argument that, rather than seeking to ground our values in abstract reasoning, we should seek a more historically-based evolutionary account of human values. This MacIntyre has initiated with his account of practices, virtues and traditions. The former he defines as:

“any coherent and complex form of socially established cooperative human activity through which goods internal to that form of activity are realized in the course of trying to achieve those standards of excellence which are appropriate to, and partially definitive of, that form of activity, with the result that human powers to achieve excellence, and human conceptions of the ends and goods involved, are systematically extended.” [1, p. 187]

Two things are worthy of note in his definition. First, what is considered “good” is to be determined in the course of practising, not by abstract reflection. Secondly, what is considered a good or worthwhile end is not fixed but can be systematically extended through participation in the practice. Thus the notion of goodness implicit in practices is inherently evolutionary. Of course the exercise of reason, being required as it normally is to participate in a practice, is not excluded from the process. But the relative importance of the role which it plays is to be decided by the practitioners themselves in the light of the history of the practice. A virtue is then tentatively identified as:

“an acquired human quality the possession and exercise of which tends to enable us to achieve those goods which are internal to practices and the lack of which effectively prevents us from achieving any such goods.” [1, p. 191]

This definition has the virtue of simplicity, but is clearly too wide in its scope; neither does it allow us to compare the relative importance of the virtues associated with different practices. To overcome this shortcoming, MacIntyre points to the need to relate practices to what he calls the “narrative” of a human life or lives, in the sense of their self-understanding. Arguing that it is a fundamental characteristic of human life that it possesses or seeks a consistent self-understanding which is furthermore always directed towards the future, he suggests that such a self-understanding or “narrative quest” naturally provides us with our conception of the good life (to use Aristotle’s phrase), in the sense of identifying the good to which other goods must contribute if they are to be meaningfully integrated into a whole life. Locating practices in such a context then allows us to sharpen the above tentative definition of a virtue by excluding those human qualities which are judged incompatible with the practice of the good life; and it allows us, in principle at least, to compare the relative importance or merits of the virtues associated with different practices.

The criticism may be raised at this point that the viewpoint I have identified appears not too different from that imputed to the perspectivists. But one further qualification needs to be made. The good life is never lived in isolation but always shared in community with others. Thus one’s conception of the good for oneself has to be framed in such a way that one’s life does not interfere unduly with the capacity of others to live out their good life. Such is of course far easier said than done, but we are assisted at this point by the existence of what MacIntyre calls “traditions.” These are precisely the historically determined shared understandings and beliefs of those who engage together in a given practice. And since the good life is lived out by definition through practices (in MacIntyre’s sense), this is always in the context of some tradition or another.

A not dissimilar viewpoint was advanced by British moral and political philosopher Michael Oakeshott [7]. He distinguished conceptually two forms of moral life: the “habitual” and the “reflective”. The first of these emerges not by “consciously applying to ourselves a rule of behaviour, nor by conduct recognized as the expression of a moral ideal”, but rather by simply “acting in accordance with a certain habit of behaviour”. The “reflective” moral life is by contrast determined by a “self-conscious pursuit of moral ideals” or through “the reflective observance of moral rules.” Oakeshott emphasizes that the moral life is necessarily lived in practice as some combination of the habitual and the reflective modes. Yet there is a tendency for societies where the first of these two poles holds sway, such as was the case with the pre-Socratic Graeco-Roman world or in early Christian communities, to become increasingly concerned with the formal codification of their values and ideals and so to drift towards the second pole.

Oakeshott finds this trend unfortunate insofar as he associates this second pole with a “denial of the poetic character of all human activity.” He denigrates its advocates and practitioners by means of allegorical critique. For example he compares the capacity for moral cultivation of a man caught up in deliberations about how to balance conflicting moral ideals which press upon his mind with the capacity of a farmer to cultivate the land when he is “confused and distracted by academic critics and political directors.” He compares this situation also to that of a literature in which criticism has usurped the place of poetry, or in a religious life in which he pursuit of theology offers itself as an alternative to the practice of piety. The parallels with MacIntyre’s [1] emphasis on the centrality of practices in determining the form of the good life cannot be missed.

So we find that we have returned to where we began with the twin principles of solidarity and subsidiarity as the foundations of the moral order. But whereas we started out examining these principles form the top-down approach pursued by the European Union and more generally by the rationalist tradition, we have returned to them from a bottom-up perspective more aligned with the empiricist tradition. In the process of making this transition I believe our understanding is deepened concerning the origins of some of the problems we currently face, and our ability to think more clearly about the foundations of the moral order enhanced.

References

[1] A. MacIntyre: After Virtue – A Study in Moral Theory, 2nd ed., 1985 (Duckworth, London)

[2] A. MacIntyre: Whose Justice? Which Rationality? 1988 (Duckworth, London)

[3] A. MacIntyre: Three Rival Versions of Moral Enquiry, 1990 (Duckworth, London)

[4] S. Dothan: Judicial Tactics in the European Court of Human Rights, 2011, Public Law and Legal Theory Working Paper No. 358, University of Chicago, Department of Law

[5] H.-W. Micklitz: Judicial Activism of the European Court of Justice and the Development of the European Social Mode in Anti-Discrimination and Consumer Law, 2009, European University Institute Working Papers, LAW 2009/19.

[6] R. Scruton: A Short History of Modern Philosophy: From Descartes to Wittgenstein 1984 (Routledge & Kegan Paul, London)

[7] M. Oakeshott: The Tower of Babel in “Rationalism in Politics” 1962 (Methuen), first published in 1948 in Cambridge Journal, vol. 2

[8] Ben Ryan: A Soul for the Union, 2016, Theos Think Tank Report http://www.theosthinktank.co.uk/publications/2016/01/21/a-soul-for-the-union

[9] http://eur-lex.europa.eu/summary/glossary/subsidiarity.html

[10] David Goodhart, 2013, The British Dream: Successes and Failures of Post-War Immigration

 

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