1 14 What is it to Wrong Someone? A Puzzle about Justice Michael Thompson This will be the best way of explaining ‘Paris is the lover of Helen’, that [ et eo ipso is, ‘Paris loves, and by that very fact ] Helen is loved’. Here, there- fore, two propositions have been brought together and abbreviated as one. Or, ‘Paris is a lover, and by that very fact Helen is a loved one’. 1 —Leibniz, ‘Grammaticae cogitationes’ W nition : ‘X has a right [against Y]’ if and only if X can have rights, De and, other things being equal, an aspect of X’s well-being (his interest) is a su Y cient reason for holding [Y] to be under a duty. 2 The Morality of Freedom —Joseph Raz, 1. The Normativity of Considerations of Justice is an Intrinsically Relational, or ‘Bipolar’, Normativity Consider some one human being. Let us adopt the manner of contempor- ary academic moralists and give her a name: let us call her ‘Sylvia’. Now, 1 G. W. Leibriz, Logical Papers , ed. G. H. R. Parkinson (Oxford: Oxford University Press, 1966), 12. See also a passage from a letter to Des Bosses: ‘You will not, I believe, admit an accident which is in two subjects at once. Thus I hold as regards relations, that paternity in David is one thing, and W liation in Solomon is another’, quoted in Bertrand Russell, A Critical Exposition of the Philosophy of Leibniz (Cambridge: Cambridge University Press, 1900), 201. 2 The Morality of Freedom (Oxford: Oxford University Press, 1986), 166; the second bracketed expression replaces Raz’s ‘some other person(s)’.
2 / Michael Thompson 334 even the coarsest utilitarian consequentialist, the scary monster of modern moral philosophy, will side with common sense on this one point: that it would be wrong for you or me or anyone to kill Sylvia on any ordinary Sylvia on you prudential ground. For example, it would be wrong for to kill the ground that she is just ahead of you on the waiting list for admission to law school. But, unlike that coarse consequentialist (who may in any case be imaginary), common sense will also insist that we do not really alter the case if we replace the prudent hope of law school with some more exalted charitable aim. For example, it changes nothing in the moral equation that you are proposing to harvest Sylvia’s internal organs in the ve transplant patients with suitably diverse organ W hope of saving needs. And this is not, we a rm, because the occurrence of one murder, Y or one death-by-murder, or one ‘active’ killing, is somehow a worse sort of happening than the occurrence of several purely natural deaths. For common sense also teaches that the case remains unaltered even if your killing Sylvia is aimed at saving several other people precisely from being murdered—perhaps by a perverse tyrant who has forced this choice 3 upon you. Your moral relation to Sylvia seems to survive intact in all of these cases; it has a certain robustness; there is, we think, something there. Sylvia and you have fallen into a peculiar nexus which limits your pursuit of objectives of any kind, even the beautiful objectives of charity and the love of justice. The consideration operates pairwise, and the rest of the world is, at least to a certain extent, closed out. You have, as we sometimes say, a duty ‘to Sylvia’ not to kill her. You , but we ‘owe’ it to her not to kill her. Such language is perhaps a bit sti V can put the same point more colloquially. We can say, for example, that in you : you would do wrong precisely ‘to’ her, would wrong killing Sylvia her or do wrong ‘by’ her. And, though it opens something of a Pandora’s box, we might reverse terms in the relation, saying, I think quite aptly, that right Sylvia has a against you . She has a right, , morally speaking, precisely namely, not to be killed by you, and a claim to something better. You, on , in respect of her, to do what will kill her. the other hand, have no right What we have said of the ordered pair of you and Sylvia, we might equally have said of the ordered pair of Sylvia and you, of course, or of the ordered 3 These examples are taken from Philippa Foot’s 1968 paper ‘Abortion and the Doctrine of Double E V Virtues and Vices (Berkeley: University of California Press, 1978), ect’, reprinted in 19–32.
3 335 What is it to Wrong Someone? A Puzzle about Justice / pair of either of you and anyone else, and so on. The class of pairs of nitely extensible. W potential mutual wrongers is unlimited or inde Common-sense meditation on our murderous materials thus seems, ection, to trigger deployment of a collection of abstract forms of X upon re forms of judgement. These forms of judgement express what we might call forms of relation of right . Counting internal negations as ,or bipolar normativity distinct types, we might tabulate them as follows: AX X Y by not doing A wronged Y by doing wronged to do AX has a duty to Y not to do A has a duty to X Y YX has a right against Y has a right against X —that he do A —that he not do A —to do A A —not to do W X adikei Y ’; The propositions in the rst row express forms of Aristotle’s ‘ those in the last two rows express Hohfeldian ‘claim’ and ‘privilege’ re- spectively. The concrete judgements that come under these abstract head- ings can be quite various. Murdering and maiming people and breaking promises made to them are among the traditionally accredited content- providers under the heading in the upper left, suitable readings of ‘doing W A c ‘wrongs’ or concrete ways of wronging someone. ’; they are speci But I am interested in the form that is, I believe, shared by all of the tabulated judgements, irrespective of the particular heading (and in the ection ought, I think, to corresponding form of fact). A further act of re X bring us to see that a special way of coupling representations of agents runs throughout our table. In all such judging, whatever the determinate form, I may be said to view a pair of distinct agents as joined and opposed in a formally distinctive type of practical nexus. They are for me like the lling one of these forms with opposing poles of an electrical apparatus: in W concrete content, I represent an arc of normative current as passing be- tween the agent-poles, and as taking a certain path. My aim is to think out some of the peculiarities of this form of representation. The ‘bipolarity’, as I will sometimes call it, of the judgements that come under these several headings is something more determinate than the form of coupling of singular terms in a Fregean two-place relational judge- Everest is taller than McKinley and 143 ment. Merely relational judgements like contain two singular representations; if we remove each of is divisible by 11 them in sequence, viewing its position in the judgement as replaceable by other singular representations, we arrive at the relational judgement-types
4 / Michael Thompson 336 z and j is divisible by z . If, then, we similarly remove the j is taller than relational material that at the outset joined those singular representations, we arrive at a form that the two original judgements share—the general form of a two-place relational judgement, , z ), as Frege would write it, F j ( 4 This arrangement of schematic letters captures a certain funda- or jFz . mental ‘posture of the mind’, in Locke’s phrase, a posture that is adopted 5 in the framing of any given relational judgement. It is plain, then, that any concrete judgement that exhibits a form found on our table must exhibit this merely Fregean ‘relationality’ as well: a ‘bipolar’ practical judge- ment will after all always contain two singular representations—represen- ’. tations, namely, of two agents, substituends for ‘ X ’ and ‘ Y But note that any concrete judgement that exhibits Fregean relational as well, and in at least two subject–predicate form form must exhibit Fregean F di j , z ) can V erent ways. For what can be viewed as bearing the form ( ( ) or the form u ( z ). In equally be viewed as bearing either the form j C Everest (as I think thinking that Everest is taller than McKinley, I think of of K2) that it is taller than McKinley and of McKinley (as again of K2) that X ection will W nd Everest is taller than it . But the reverse is not the case: re ( j ), in the judgement that Everest is a mountain , subject–predicate form, C but not relational form. The relational form of a given relational judg- more determinate than the subject–predicate form it inevitably ment is thus also exhibits. My thought, then, is that there is something still more determinate, but something belonging nevertheless to the form of thought, or to the ‘pos- ture of the mind’ in judging, that any instance of the tabulated judgement- X has a right against Y , X wrongs Y type has in common with any instance of X promised Y and a number of other judge- , or indeed or X has a duty to Y , Y )or X J Y , as we might ment-types. This is the practical-bipolar form, J( X write it (switching from Greek to Latin, as suits our incipiently juridical material). This practical bipolarity is something that judgements coming share with instances of, say, j is taller than z , under these headings do not is divisible by . The instruments devised by Frege will obviously j much less z not distinguish the former class from the latter; if then, by the ‘logical’ 4 , vol. 1, part 1, §§ 1–4, trans. in Michael Beaney See F. L. G. Frege, Grundgesetze der Arithmetik (Oxford: Blackwell, 1997), 211–15. See also the essays ‘Function and (ed.), The Frege Reader Concept’ and ‘Concept and Object’ in the same collection. 5 John Locke, An Essay concerning Human Understanding , ed. P. Nidditch (Oxford: Oxford Univer- sity Press, 1975), 472 (bk. III, ch. VII).
5 337 What is it to Wrong Someone? A Puzzle about Justice / form of a judgement we mean its ‘Fregean’ form—a very reasonable use of c term ‘logical’—then we will speak of the practical bipolarity W the honori of a judgement as a matter of, say, ‘categorial’ or ‘intellectual’ form. For, as I will argue, thought takes a distinctive turn here, a turn which cannot simply be reduced to its taking a certain body of concrete relations, prac- tical ones, as its theme—and still less by making reference to a special class of objects: namely, agents. Such thought has, among other things, a novel 6 and particular relation to what it is about. This special posture of the mind in coupling certain representations of agents marks the resulting judgements as belonging to the element 7 justice of . Here ‘justice’ bears its traditional sense, naming a virtue of indi- vidual humans like you and me, and not a feature of the larger social structures into which we fall. The mark of this special virtue of human or agents, as Aristotle says, is that it is ‘toward another’, pros heteron 8 9 ; pros allon or as Kant says, gegen einen , it is, as St Thomas says, ad alterum 10 Anderen . It is characteristic of the individual bearer of justice, in this traditional sense, to apprehend this order of thought and to deliberate W rst-person judgements of the bipolar types found on our table—and with thus to view as related to others, and as other to others, in this herself peculiar way. nd where this genuinely just My chief aim in this paper will be to W agent, our heroine, locates herself in the ‘space of reasons’ as she thinks these thoughts of justice. How are we to understand this being-toward- culty in Y another of her thoughts? The ‘puzzle’ I mean to identify is a di saying what could make her bipolar moral thoughts . true 6 Elizabeth Anscombe, thinking of propositions like ‘You can’t take that, it’s for N’ or ‘You can’t do that, it’s N’s to do’, writes: ‘We have here a very special use of the name of a person, or a very special way of relating something to a person, which explains (not is explained by) the general term ‘‘right’’. . . . The general term ‘‘right’’ is constructed because, as it were, our language feels the need for it. As for example, a general term ‘‘relation’’ was invented’ ‘The Source of the Authority of the State’, in Collected Philosophical Papers , vol. 1 (Minneapolis: University of Minnesota Press, 1981), 130–55, at 142. 7 Or, more precisely, they belong under this heading given the ‘moral’ atmosphere my remarks have so far generated. I will suggest in section 5 that practical bipolarity, or relational ‘deonticity’, is found in extra-moral departments of thought. 8 Nicomachean Ethics Aristotle, , book V, ch. 1. 9 Summa Theologiae Aquinas, , IIa, IIae, q. 57. 10 Doctrine of Virtue , § 16, ( Metaphysics of Morals , 442) in M. Gregor (ed.), Practical , e.g. Akademie (Cambridge: Cambridge University Press, 1996). Philosophy
6 / Michael Thompson 338 2. Bipolar Normativity may be Distinguished from Merely Monadic Normativity We can sharpen the idea that these many types of judgement exhibit a single practical ‘bipolar’ form, distinct from, but subordinate to, the gen- eral form of a Fregean relational judgement, if we oppose our table of , non-relational monopolar forms of judgement to a parallel array of , or, as I will mostly say, merely monadic forms: did wrong in doing A did wrong in not doing AX X A has a duty not to do has a duty to do X AX has a right not to do X has a right to do AX A These propositional forms provide the usual theme of ethics and meta- ethics, and are typically assigned a distinctive status within the totality of propositions. But tradition and intuition alike assign them a place very di V erent from that occupied by our bipolar forms. Aristotle and St Thomas would, if I understand them, place the categories of this merely monadic lex —that is, ‘what is lawful’ to nomimon table under the general heading of or or ‘law’. (Here, the idea of law is, I think, to be taken very broadly, as any principles of what we would call morality.) The inter alia covering categories of our properly bipolar table they would place under a heading of ius —that is, of ‘what is just’ or ‘fair’, or of ‘right’. Thomas’s to dikaion or ius discussion of , or bipolar normativity, appears several hundred octavo 11 . pages after his famous discussion of merely monadic lex Aristotle expends much thought distinguishing the ‘unjust’ man in the thin, ‘general’, mo- nadic sense of the lawless, unruly, unprincipled, unrighteous, immoral man—the —from the unjust man in the properly bipolar sense of paranomos 12 the unequal, unfair, and grasping man—the . anisos or pleonekte ̄s The latter and his virtuous opposite—our heroine, the bearer of justice properly . Nicomachean Ethics so-called—are the principal theme of book V of the If, following Bentham, we call moral judgements of the monadic sort ‘deontological’, we might, in homage to Aristotle, call those of our bipolar sort ‘dikaiological’. If the study of the monadic type of judgement is meta-ethics, the study of the bipolar type is the little practised meta- dikaiology. 11 is IaIIae, q. 90; the question on The question on is IIaIIae, q. 57. lex ius 12 Aristotle, Nicomachean Ethics , book V, chs. 1 and 2.
7 339 What is it to Wrong Someone? A Puzzle about Justice / es what amounts to the In the course of objecting to it, Kant digni W ation of our two tables with the title of the ‘amphiboly of the moral con X 13 This amphibolical assimilation might run in either concepts of re ection’. X direction, and it seems to appear in even the most intuitively hostile envir- onments. A. I. Melden and T. M. Scanlon have, for example, found it in John Rawls’s theory of the obligation of promises. Rawls’s account clearly every puts bearer of a ‘practice’ of promising into the position of the one to . All alike are positioned to charge the promisor with whom the promise is made a violation of merely monadic ‘moral duty’ should he fail to carry through. The account does not single out the unhappy promisee as one to whom who is wronged in a way others are not—or, equivalently, as the one the promisor had a duty. Rawls, according to these writers, misperceives the merely monadic requirement that his theory is equipped to explain as amounting to the evidently bipolar obligation of promises, which thus remains unexplained. His uniformly monadic vocabulary seems to leave 14 something out. It seems equally plain, to consider the other direction of possible assimi- lation, that our monadic table of moral categories is not reducible to the bipolar in any straightforward way. It is presumably true that I ‘act wrongly’, monadically, whenever I wrong another. But justice isn’t the only virtue, and so I can intelligibly be said to do wrong or go wrong or act wrongly, morally speaking, even when no one is wronged. If, for example, you are making an unjustly intrusive enquiry, and I tell you a lie in wrong you . But a lie would cover response, it certainly doesn’t seem that I me with shame nevertheless. The claims of honesty thus seem to outrun 13 Kant, Metaphysics of Morals , §16. 14 (Cambridge, Mass.: Harvard University Press, 1971), § 52. A Theory of Justice John Rawls, The source of the trouble is Rawls’s reliance on H. L. A. Hart’s ‘Principle of Fairness’ (or of ‘Fair Play’). This principle assimilates practices which intuitively bind us to one another to practices which, like recycling, bind us to the production of some public good. The principle ts of a fair practice of any kind, I am says that, where I have voluntarily accepted the bene W ‘morally required’ to do ‘what the practice requires’. It is in the nature of the case, then, that W the form of moral requirement that gures in the principle is merely monadic. Rawls thus Rights and Persons misses the directed character of the obligation of promises. See A. I. Melden, (Berkeley: University of California Press, 1977), 87–104, and T. M. Scanlon, ‘Promising’, in the Routledge Encyclopedia of Philosophy , vol. 7 (London: Routledge, 1998), 740–2. These writers seem to think that their objection runs against any ‘social practice’ conception of the obligation of promises. But it seems plain that Rawls could easily meet it by distinguishing two types of practice, one type merely monadic and the other directed or bipolar, and two corresponding ‘principles of fairness’.
8 / Michael Thompson 340 those of justice. The intellectual content of my feeling of shame is a deontological, not a dikaiological, judgement. ‘I did wrong in that I lied to you’ contains representations of a pair of agents, indeed, but the combin- you ation is not properly bipolar: the representation of falls inside the scope tted into this monadic normative form; it of the action description that is W does not go to characterize the form of normativity itself. You are the occasion, not the victim, of my fall. Perhaps I would be mistaken to think and feel these things in the case I have imagined. But, as Joseph Raz forcefully argues, a blanket denial of the possibility of acting wrongly, or ‘immorally’, where no one is wronged, would be a strong and implausible substantive claim, amounting, I suppose, 15 to a sort of moral libertarianism. 3. The Opposition between Bipolar and Merely Monadic Deonticity Extends beyond Morality My suggestion has been that the opposition between our two tables is a matter of the form of thought, of categorial or intellectual form. We reached those tables by framing and re X ecting on judgements with a ‘spe- ci W cally moral’ content, as I will put it. We imagined certain killings and certain lies, and then let our moral intuition take them where it would. But, having come upon our second, merely monadic, table, we can see, I think, that we have latched on to a distinction that transcends the purely ethical sphere and the particular locutions we have chosen to express the contrast. Meditation on this fact should make the purely formal character of the opposition quite plain. Wherever a philosopher is inclined to speak of normativity or deonticity and of practical or deontic ‘norms’, ‘standards’, or ‘principles’, we will have an interpretation of our merely monadic forms of judgement. The spe- cally moral interpretation of our six monadic forms is just an example: on ci W this interpretation, the relevant ‘norms’ are, let’s suppose, the so-called principles of the various true virtues taken together as one body. But the standards that give sense to a merely monadic employment of deontic vocabulary might instead be purely instrumental or technical. They might be the broader counsels of prudence. They might belong to a system of 15 Raz, Morality of Freedom , ch. 5.
9 341 What is it to Wrong Someone? A Puzzle about Justice / criminal legislation or to a logical calculus. They might be the rules of a game or the canons of etiquette. words ‘duty’ or ‘right’ in It would of course be a bit strange to use the some of these connections—for example, in issuing counsels of prudence. But the common underlying logical structure is clear and familiar, what- ever words we may use to decorate it. A merely monadic ‘duty’ is simply the deontic necessity or requirement or ‘must’ that is constituted by the underlying norms or standards, whatever they are. A merely monadic ‘right’ is what these requirements leave open, a deontic possibility or per- mission or ‘can’. They are thus respectively what deontic logicians express by their operators O and P, which they grant have innumerably many interpretations and enter into many di V X erent departments of thought. ‘ X is required to do A Otodo A ’ means that or is committed to doing it— Ptodo ’ means that X is permitted or entitled or has a ‘duty’ to do it; ‘ A X to do it—or has a ‘right’ to do it. Once we see that our ‘merely monadic’ forms of deontic judge- V er- ment may be read as empty logical forms admitting many radically di cally ent interpretations or schematizations, only one of them speci W moral—that the O’s and P’s are apt to receive numerous indices or sub- scripts, so to speak (as they do in some attempted formalizations)—we will, I think, see that the same holds of their dikaiological or bipolar counterparts. We speak, as we saw, of your moral duty ‘to’ Sylvia. But we can also legal speak of your duties ‘to’ her. These might arise from a valid contract with her, for example. Moreover, legal duties binding one agent to another erent and even overlapping legal systems. V can be judged according to di You may be bound to Sylvia in one way under the laws of the United States, for example, and in another way under the laws of Pennsylvania. Each legal system is associated with a di V erent rendering of our tabulated V bipolar judgements, a way of schematizing the abstract relational di erent O’s and P’s of the bipolar deontic logic we are implicitly imagining. Where the ‘subscript’ needs to be made explicit, it will be by use of such an expression as ‘under L’, ‘according to L’, ‘at L’, or ‘in L’, where L is the legal system in question. But the contrast between properly bipolar and deonticity is a merely monadic precipitate of other conceptual atmospheres, not merely those of morals and law. Customs, practices, and institutions of quite various sorts can give sense to our bipolar linkages.
10 / Michael Thompson 342 Think, for example, of an absurdly exploitative pre-legal system of prop- erty relations. The pairwise linkages it constitutes are not legal, for there is no institution of appeal to an independent judge. And they are not moral V linkages because morals, by hypothesis, say something di erent. As a fellow ‘free’ man under this system, perhaps you ‘wrong’ me and my house, if you kill my brother or take our cattle or burn down our dwelling-place— but not if I’ve been found helping your slaves to liberate themselves. And if there can be such a thing as a system of etiquette , why should there not be a petite justice —a space within which even etiquette reaches Petite justice intelligibly for our bipolar deontic grammar? would seem to be most of what etiquette is. And David Hume, in the course of making what is essentially my present competitive games like chess and chequers may be said to point, argues that 16 attract thoughts in these same logical shapes. The tabulated forms of V erent from the merely monadic dikaiological judgement are thus no di forms in this one central respect: if we are to get anywhere with them in thought—if they are to register truth or even falsehood—then they must rst be shifted into a particular gear. Or, if you prefer, they must be sung in W relational a particular key. In addition to a pair of relata, our O’s and P’s must always at least implicitly be supplied with an index or subscript. One of cally moral, or, as we might say, directly normative: namely, W these is speci 17 the one with which our heroine the just agent distinctively operates. 16 , ed. P. A. Nidditch, 3rd edn. An Enquiry concerning the Principles of Morals David Hume, (Oxford: Oxford University Press, 1975), 210. 17 A ’ and ‘ X X Let us leave aside the question of indices, gears, and keys. If we use ‘ Ptodo ’ to symbolize the usual monadic cases—respectively permission and obligation, A Otodo X , Y > Ptodo A ’ and ‘ < ‘may’ and ‘must’, monadic right and duty—then ‘ , Y > Otodo A ’ < X could symbolize the properly bipolar cases: respectively Hohfeldian privilege and directed duty Jones, Smith > O to mow Smith’s or owing. A substitution instance of the latter would be ‘ < lawn’: i.e., ‘Jones owes it to Smith to mow his lawn’. An advantage of taking both forms, ‘O’ and ‘P’, as primitive in the monadic and relational cases alike is that we then need not take either the idea of omission or that of an ‘internal’ negation, as basic: ‘ P not to do A ’ would X ned as ‘Not X Otodo A ’, and ‘ X O not to do A ’ would be de W ned as ‘Not X Ptodo A ’ be de W (and similarly for the relational cases). W < X , Y > Otodo A ’, so that we have, say, ‘ < X , Notice that if we x the second variable in ‘ Otodo Sylvia ’, then we are left with an ordinary monadic deontic operator which needs > A one agent-term and one action-term for completion. It is thus in the nature of a form of bipolar deonticity to constitute a type or form of merely monadic duty or requirement associated with each agent in the system. Where our bipolar categories get a grip, each agent is as it were a law, a monadic lex , for all the others.
11 343 What is it to Wrong Someone? A Puzzle about Justice / What particular acts count as wronging someone, what things may be called duties to him, will of course depend on the particular gear into which the dikaiological conceptual machinery is shifted. Private law and true justice do not much concern themselves with modes of greeting people or the movements of very small pieces of wood. On the other hand, chequers, chess, and etiquette do not have much to say about killing people—unless perhaps duelling rules count as a sort of etiquette. 4. Positive Law Encodes our Opposition in the Distinction between Private Law and Criminal Law In order to develop the contrast between and merely monadic properly bipolar y with the narrowly legal material. X forms of deonticity, let us tarry brie paradigmatically generate bipolar The zone in which juridical practices deonticity—‘legal relations’ as Wesley Hohfeld called them, translating the ̈ of Kant, Fichte, and the German legal tradition—is of course Rechtsverha ltnisse so-called private law, the sort carried on under headings of contract, prop- erty, tort, and so forth. Indeed, in our system the names of particular private-legal proceedings already exhibit the peculiar nexus of representa- ]v. Mr X your name here v. Sylvia . tions that interests us: Ms Y , we call them, or [ The atmosphere of a lawsuit is saturated with judgements of our type: ‘She’s done me wrong,’ we say, ‘She owes me,’ and so forth. Wherever customs and institutions take this turn—which is of course much more ancient and simple than our lawyers are likely to let on—all of our abstract bipolar forms of judgement are given a sense and thrown into a particular gear. Y er has raised culties Samuel Sche This thought suggests a possible response to the di Z about one of the moral intuitions with which we began: namely, that you would wrong Sylvia in killing her, even if it were to save several others from being killed. If a form of Z deontic requirement sets its face against killing, Sche er suggests, surely it does so incoher- ently and self-defeatingly if it makes no exceptions for killings that save numerous others precisely from being killed. But in a bipolar conceptual scheme, we have in a sense not one but many parallel forms of erian monadic deontic requirement, one for each agent. It doesn’t seem that a properly Sche Z of these—for example, the one incoherence can be found in connection with any one ‘indexed’ by Sylvia. Our obligations-to-Sylvia are easily made coherent with each other by Z er’s helpfully clarifying response to appeal to Sylvia’s interest and will. (See especially Sche the arguments of Philippa Foot in ‘Agent-Centred Restrictions, Rationality and the Virtues’, in S. Sche Consequentialism and its Critics (Oxford: Oxford University Press, 1988), Z er (ed.), 243–60.)
12 / Michael Thompson 344 wrongs Y ’ forged by these customs is precisely that The interpretation of ‘ X , ‘He’s done me wrong.’ And in recog- attached to the words of the plainti V nizing a particular collection of grounds for such complaint, or ‘causes of , as they were called in Athens—private-legal institutions must dikai action’— at the same time implicitly generate a collection of directed or bipolar duties V ’s theme. and rights. The violation of such a duty or right is the plainti And, of course, the result of a successful complaint is itself to be described in our terms: the plainti V gains a right against the defendant to receive restitution, 18 perhaps, and the defendant acquires a correlative duty to ‘make her whole’. The zone in which juridical institutions paradigmatically generate monadic merely deonticity, by contrast, is of course criminal law—that is, in institutions of punishment and sanction, not those of restitution and com- pensation. The verdict of the jury, ‘Guilty!’, expresses a property of one agent, not a relation of agents. If another agent comes into the matter—if there is, as we say, a ‘victim’—it is, so to speak, as raw material in respect of which one might do wrong. The position occupied by other agents in the associated legal facts might equally be held by rare birds or old build- ings. Much criminal law pertains after all to acts involving no other agent at all. Though the criminalization of murder in ancient Athens kept each the rest of them to a certain extent, it turned their speci W cally Athenian o V 18 The relational character of private law is emphasized by Evgeny Pashukanis, General (London: Pluto Press, 1983), in which the legal equivalent Theory of Law [i.e., Right] and Marxism of Kant’s amphiboly is attacked under the title of ‘normativism’, or, as we might call it, Justice monadicism or lexism. It is also emphasized in Giorgio del Vecchio, (Edinburgh: Univer- sity of Edinburgh Press, 1955), and more recently by Ernest Weinrib, The Idea of Private Law (Cambridge, Mass.: Harvard University Press, 1996), from whom I take the expressions ‘bipolar’ and ‘bipolarity’. The idea of a bipolar legal relation is so much taken for granted by Wesley Hohfeld that its opposition to monadic legal requirement is not thematized by him; monadic notions are nowhere in view in his text. It is a mistake to use Hohfeld’s notion of correlativity as if it involved any substantive idea; if he had read Russell, he would have used the idea of a logical converse to express his ideas. The thought that one kind of right ‘correlates’ with duty means rst that the two general relations—namely, those on the second and third lines of our W table—are logical converses, like ‘less than’ and ‘greater than’, or ‘kisses’ and ‘is kissed by’. They are, if you like, the same concept, the same ‘fundamental legal conception’, the only erence being the order in which the terms are taken. Where writers say that ‘some duties di V correlate with rights’, what they seem to mean could as well be expressed by a Hohfeldian by saying that some monadic duties ‘correlate’ with bipolar or directed duties; they are thus using the word in a completely di V erent sense, and expressing a form of thought nowhere present in Hohfeld, who does not use the conception of a monadic duty. See the title essay of Wesley Hohfeld, Fundamental Legal Conceptions (New Haven: Yale University Press, 1923), 23–114.
13 345 What is it to Wrong Someone? A Puzzle about Justice / toward ‘the State and the Laws’ themselves, as Socrates juridical Achtung , and not, at least in the W toward one another .As puts it in the Crito rst instance, and graphe as forms of legal proceeding, we dike the Athenians distinguished ̄ ̄ ’ from ‘ Ms Y v. The State of Y ’ as types of case. The v. Mr X distinguish ‘ Mr X form of criminalization is in this sense ‘merely monadic’, and criminal law is for this reason, I think, the implicit model of much philosophical discus- 19 sion of normativity and deonticity. 5. Excursus: Because Moral Bipolarity Extends beyond the Forms Listed on our Table, Received Reductions of that Table may not Dispense with Moral Bipolarity in General, but rather Presuppose it I have been suggesting that the categories of our rst, dikaiological or W bipolar table are very abstract; they may be shifted into various gears, or 19 The private-legal employment of our bipolar notions can hardly be supposed the most primitive type. The existence of such institutions evidently presupposes that the agents who meet in it also meet in exchange, in some measure, and thus also as bearers of private property; Aristotle notes that ideas of market value and equivalence must have a foothold , book V, ch. 4, 1132b13). It is striking, among the bearers of such a practice ( Nicomachean Ethics though, that as soon as Aristotle begins to touch on our bipolar, commutative, or ‘synallag- matic’ ethical material, his attention is immediately absorbed in an abstract characterization of this sort of ‘corrective’ institution, in terms of ‘arithmetical equality’. This has led some to ̄tikon to en tois suallagmasi diortho think that the part of virtue of justice that ‘corrects interactions’ ( to en tois sunallagmasi dikaion (1131a1), also known as (1131b33))—i.e., the part of justice Thomas calls —can show itself only in independent judicial operations correcting past disas- commutative ters. But why not in the just agent’s getting things right in the W rst place, e.g., by not killing other people, keeping agreements, returning deposits, and taking due care not to injure? She operates with a view of what’s right as between herself and another, and this same view V er and things go awry. operates in the just judge where agents di That Aristotle should suddenly move to the contemplation of corrective institutions in the course of a discussion of justice as a virtue of individual human beings might be thought to betoken an X optimistic con ation of what we distinguish as the legal and moral orders. But, like his use of mathematical analogies, it might equally be taken to express the idea we are propounding: namely, that the moral virtue that interests us operates with a very abstract collection of categories, categories that can nd application elsewhere. Following Aristotle’s example, I will W take the peculiar yoking of agent to agent that is constituted by this sort of institution as a paradigmatic realization of the idea of a dikaiological nexus, but I will not assume that these institutions have any speci W cance at all. For all I pretend to know here, W cally moral signi private law and etiquette and competitive games are all alike the devil’s work. Perhaps our ideal heroine, the bearer of true justice, rejects them all.
14 / Michael Thompson 346 cally moral. sung in various keys, as I have put it, only one of them speci W x upon a particular gear setting or schematization, But note that once we W we will be inclined to think that the forms our table tabulates are really ection on this fact will X only examples chosen from a wider class. Re provide some insight into received accounts of rights. The further untabulated elements will of course di V er according to the gear setting selected—etiquette or Pennsylvania law, as it might be. For example, a developed system of private law will constitute a vast range of concepts pairing one agent o V with another—for example, X has a contract , and so forth. Judgements X has an action in trespass against Y with Y or deploying these concepts will exhibit the speci c form of bipolarity or W pairing that is associated with the legal system in question. So it is with the X promises Y that W speci cally moral case. For example, the judgement-type X has a moral would seem to capture a more determinate form of he’ll do A ; this is more or less what Melden and Scanlon accused duty to Y to do A Rawls of missing. The former judgement-type would thus seem also to exhibit the bipolarity of the latter. In framing a representation of a prom- , Y )or X J Y , and shifts it into a ise, the mind adopts our special posture, J( X 20 cally moral gear. W speci as having, say, turned left rather than right And suppose I represent you because you knew that turning right might kill . Here I link represen- Sylvia Sylvia and tations of you in another untabulated form of Fregean relational judgement. It is a representation, true or false, of an explanatory reason. But where I am amassing a record of your sterling justice, my judgement still exhibits, I think, the generic ‘bipolar’ form we are investigating. For in that case my account is not intended to abbreviate a more involved aeti- ology referring, say, to your fear of the inevitable manslaughter prosecu- tion or wrongful death suit. Nor am I implicitly alluding to your general horror of moral wrongdoing or violation of God’s law, though these things may be present in the case as well. My action-explanation purports is making on herself rather to record the special sort of dent that Sylvia your agency. Sylvia is, as I judge the matter, appearing on your practical radar in a quite particular way; current is passing between opposed prac- 20 X promises Y he’ll do A , I implicitly Note that in framing an instance of the judgement-type represent the parties themselves as operating with the same judgement-type, each putting the W culties this fact poses for rst person where I put a representation of her. The conceptual di Y Y cul- an account of promising, and of the concept of promising, provide a rough model of di ties pertaining to dikaiological judgement generally.
15 347 What is it to Wrong Someone? A Puzzle about Justice / tical poles. The same intuition that leads us to insist upon the distinctive- ness of moral duties ‘to’ others thus seems implicitly to contain a concep- mode of dependence tion of a special possible of the actions of one agent on facts it apprehends about another. The deployment of this conception of dependence in a particular case will exhibit Fregean relational form, X X J Y , indeed, but also, I think, our sub-Fregean categorial form J( , Y )or W shifted, again, into a speci cally moral gear. If that is right, then this same bipolarity, and a similarly distinctive mode of dependence, must surely be exhibited in the corresponding norma- tive reasons-judgement, a judgement we might have framed in advance of your heroic left turn: namely, that you ‘had reason’ to turn left rather than right, in that turning right might have killed Sylvia . For the reasons why a virtuous agent does what virtue requires are presumably among the reasons she has to do it. The bipolar conceptual atmosphere of the former reasons- 21 judgement will thus also surround the latter. And it is the same where I represent to your Sylvia as, say, consenting turning right, perhaps despite the fact that it might kill her. This judge- ment is neither normative nor explanatory; it is a representation of an ‘act of mind’, a state of Sylvia’s will, but in framing it I enter the same bipolar conceptual element that is our theme. This becomes clearer if we consider a proposition involving a third party: for example, ‘Sylvia consented to your telling Meredith her secret.’ If this is true, then Sylvia has indeed : namely, j entered into a certain Fregean relational nexus with Meredith her secret consented to your telling . But Sylvia has entered into a formally more B special nexus with —one of the type, J(Sylvia, you) or Sylvia-J-you, the you representation of which I am calling bipolar. Current is again passing between opposed practical poles. Meredith, after all, occupies the position held by the road to the right in the other example of consent. I said above that it is characteristic of the just agent to operate with certain W rst-person judgements of this bipolar form—judgements of the ), shifted into the speci W cally moral gear setting. But my repre- form J(I, Y ecting suitable couplings in thought will sentation of the just agent as e V 21 The bare proposition ‘You have reason to turn left rather than right’ contains an implicit existential quanti er ranging over possible reasons or considerations; it is only in the W proposition that validates it, and states what your reason is, that we see its underlying bipolarity, directedness, or orientation. Thus, just as we speak of an agent’s duties simpliciter , simpliciter , but also of but also of his duties ‘to’ another, we might speak of an agent’s reasons his reasons ‘toward’ or ‘in relation to’ another.
16 / Michael Thompson 348 itself, I think, be a case of such coupling. So, for example, instances of the , will exhibit you know that Sylvia has right against you that you do A judgement-type Y )—here, J(you, Sylvia). We will later see, I our general bipolar shape, J( , X think, that the possibility of facts corresponding to such judgements—facts rst-person bipolar practical knowledge and judgement—is about people’s W crucial to the constitution of the material we are treating, on both moral and non-moral constructions of it. That is, the possibility of such couplings in judgement, in the minds of the parties, is internally related to the possibility of such couplings in fact. Or again, what brings agents together in reality in these peculiar ways, must at the same time potentially bring representations of themselves together in their rst-person thoughts. This W is part of the ground for my con W dence that we should speak not only of a special practical-bipolar form of fact, but should enter competition with 22 Frege and speak of a special practical-bipolar form of thought. In all of these thoughts, tabulated and untabulated, I seem to view you as points or bodies moving in a special moral space. You have Sylvia and fallen, namely, into a space of moral ius or ‘right’, as we might say; the intrinsic geometry of this space makes possible the various speci W c relations that I have mentioned. The class of such ‘moral relations’ extends well ed class I have tabulated. W beyond the rather rare Now, let us apply this thought. I mentioned above that Joseph Raz’s critique of ‘rights based’ moral theories may be viewed as opposing a reduction of our monadic to our bipolar table. On the other hand, though, the quotation from Raz with which I began this essay might be said to to ,of outline a sophisticated reverse reduction: a reduction of moral lex ius dikaiology to deontology, of our bipolar to our merely monadic table. Raz right against someone intends, if I understand him, for the concept of a to be explained in terms of a merely monadic concept of duty: we are to speak of a ‘right’, on his account, where merely monadic duties—cases of moral —are apt to have a speci requirement c sort of ground. And, simpliciter W though Raz does not make it explicit, the associated concept of a duty ‘to’ have to be reduced to the concept of moral someone would a fortiori requirement period: the prepositional phrase would simply be used to 22 The bipolarity that interests us might also be found in the representation of certain of the states of that you might bear toward Sylvia, or Sylvia toward you. Judge- directed feeling ments employing the concepts of grievance, grudge bearing, and resentment would be clear examples. A philosophical comprehension of these concepts of feeling presupposes a grasp of this formal feature of the judgements in which they are exercised.
17 349 What is it to Wrong Someone? A Puzzle about Justice / the special case in which a duty is founded on the interest of mark o V another agent. For you to wrong someone, on such an account, would be hers that grounds a moral requirement for you to cross an interest of . you attaching to Thus, in a Razian framework, any moral fact which may be captured in our tabulated dikaiological forms may as well be represented without them. I do not mean to oppose this reduction; to prove that it fails as an account of ‘right against’, ‘duty to’, and ‘wrongs’ would involve delicate X ection that is not to the present point. I will for the moment verbal re only pose the question whether, if such a reduction is legitimate, it moral bipolarity in general to something else. This is amounts to a reduction of not a matter of vocabulary, I think, but of the fundamental structure of the thoughts in question. nition at the W Certainly Leibniz’s remarks, which I paired with Raz’s de outset, fail to provide a reduction of Fregean relational judgements in general to et logically merely monadic ones. After all, ‘ j loves, and by that very fact ( is loved’ is as much a Fregean ‘relation word’ as ‘ ’ is; it is loves z eo ipso ) j z the result of deleting two singular representations from a complete prop- The propositions conjoined are (logically) monadic, but the proposition conjoining osition. them is not . Leibniz may thus successfully reduce other forms of relationality is F et eo ipso to that contained in his special conjunction ‘ is G’; but if j z Y there is some di culty about relational propositions in general, we have clearly not evaded it. Perhaps the monadologist’s conceptual knot has only been tightened. Is Raz, then, a sort of moral monadologist? Certainly, if anything like and for that very reason Y has a duty’ is to amount to Raz’s ‘ has an interest X has a right against ’or‘ Y has a duty to X an elucidation of anything like ‘ Y X ’, then it may be wondered whether something in the use of the con- nition, is not doing the work of nective, the other element in Raz’s de W and X are brought importing bipolarity into the equation. The agents Y into connection by the proposition as a whole: is it a merely Fregean relation, like that between Sylvia and Meredith in our example of consent; or is it something more, something speci cally dikaiological? The propos- W itions conjoined may be (morally) monadic, but perhaps the proposition conjoining them is not. W a distinctive It does seem that Raz’s de nition must implicitly presuppose mode of dependence of duties in one agent on facts about another. I spoke above of a distinctive bipolar mode of dependence of a just agent’s action,
18 / Michael Thompson 350 and of his ‘reasons’, on facts about another agent. A similar thought must reasons why I am morally required to do surely hold here, for in speaking of , and , we must also be speaking of something reasons for doing the thing required reasons why the morally virtuous agent does it thus also of . The bipolarity, the form of pairing of representations of agents, that is exhibited by the complete judgement formulating either of the latter reasons must also infect any formulation of the former. As Frances Kamm notes, it is easy to generate what strike intuition as counterexamples if the notion of rational 23 grounding that Raz presupposes is assigned an uncharitable breadth. A ‘choice theory’ of moral rights of the type associated with the name of H. L. A. Hart will face a similar di culty if it too is taken in a boldly Y 24 reductive spirit. On such an account, to simplify, a moral duty ‘to’ someone, in the sense that interests us, is again held itself to be a merely monadic duty, or a moral requirement, period. The prepositional phrase merely marks the fact that this monadic duty is responsive to, or depend- ent on, the choice, will, or consent of the one to whom we thereby declare the duty to be directed. It is in such cases that we speak of the other, the heteros , as having a ‘right’. Here, as with Raz, we might query the propos- ition expressing this dependence: if exhibits the form of pairing in ques- it X tion, then the y-paper of bipolarity has merely been moved from one hand to the other. But consider instead the form of choice or willing that is at stake. For surely the all-important potentially duty-cancelling state of of the type discussed above. There is an will is a matter of directed consent V Sylvia consents to your doing B and Sylvia obvious intuitive di erence between , the latter being a species of the more general doesn’t mind that you’re doing B 23 The Oxford Handbook of Frances Kamm, ‘Rights’, in Jules Coleman and Scott Shapiro (eds.), Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002), 476–513, esp. 483–7. ‘For example, if I have a duty to help you by praying to God for your recovery, you still might not have a right that I relate to God in this particular way’ (p. 483). After canvassing a number of such objections, Kamm reaches the heart of the matter, noting that ‘these problems arise ers the duty is not described as a directed duty because in both accounts of rights that Raz o V owed to the person with the right’ (p. 484). My only complaint against Kamm’s discussion is that she takes the notion of ‘directed duty’ or ‘owing’ for granted, as not needing explanation or philosophical elucidation. We might boldly accuse her of lacking the general conception of practical bipolarity, just as she accuses W c conception of bipolar directed duty or owing. For this Raz of blindness to the more speci reason she is unable to supply a more charitable reading of Raz in which the concept of interest dependence is taken narrowly, as itself exhibiting practical bipolarity. 24 Oxford Essays in H. L. A. Hart, ‘Bentham on Legal Rights’, in A. W. B. Simpson (ed.), Jurisprudence: Second Series (Oxford: Oxford University Press, 1973), 171–201.
19 351 What is it to Wrong Someone? A Puzzle about Justice / . The contrast between these type found in Sylvia doesn’t mind that E is happening judgements is evidently an instance of the general contrast we are pursu- what Sylvia doesn’t mind or ing. It seems that no description of what she would very to your doing will ever add up to your much like to be the case having her consent something. Thus, though it may supply an adequate elucidation of the particular locutions ‘right against’ and ‘duty to’, a Hartian account appears to move the larger question of bipolarity from the forms found on our 25 table to the form of willing that is at stake. 6. The Practical-Philosophical Conception of a Person must be Distinguished Formally from the Concept of an Agent It has emerged that our topic is not just the speci W cally moral form of bipolarity or dikaiology, but the dikaiological character of judgement taken generally, whatever the gear setting or key, and the conditions of its any such thing, possibility and truth. I want to prove various lemmas about or anyway to envisage them. The point of the lemmas, though, would be in application to the speci W cally moral, or directly normative, case: the bipolarity or being-toward-another that we found at the outset in the thoughts of our heroine and in your self-conception as bearing certain duties to Sylvia. The ‘puzzle about justice’ that I mean to present will be a culty in the interpretation of these speci W cally moral pairings and of di Y true. them the conditions that could make The chief question before us in ‘general meta-dikaiology’ is this: what beyond a mere ‘system of norms’ must be in place before we can advance from merely monadic deontic propositions of the types found on our second table to properly bipolar propositions of the type found on the W rst? What gives this dyadic grammar a foothold? What moves Sylvia out of the worldly materials which ground a particular monadic deontic judge- ment, and carves out a place for a representation of her in the form of 25 In a traditional Jewish wedding, the bride is not among the signatories of the ketubah , but she is studied for signs of despair or opposition to the advancing proceeding. If they are V . Though everything depends, in a sense, on the bride’s will, the found, the wedding is o potestas over the groom and her father. arrangement seems not to give her a (Mosaic-legal) Her will does not enter into the matter in the right sort of way, as directed consent.
20 / Michael Thompson 352 deontic judgement itself (whether it belongs to morals or law or eti- , but raw materials for wrongdoing someone whom quette)? What makes her not just , in one sense or other? someone might ‘wrong’ Let us introduce the following terminology: wherever a couple of agents are apt to be represented in true bipolar deontic judgements of one type or other, in one gear setting or another, we will say that they stand together order of right under a particular —that is, a or a particular dikaiological order (though, unlike Aristotle and Thomas, but dikaion or particular form of ius ius like Hume, we will recognize ludic iures and an occasional of etiquette). A dikaiological order is simply the objective correlate of a particular ‘gear’ into which dikaiological judgement can be shifted or a particular ‘key’ in which it, or its language, can be sung. We may also say, to continue with mere de nitions, that where a par- W ticular agent does fall under a dikaiological order, or under a particular ius , the agent is thereby rendered a person . This is a straightforward generaliza- tion of the concept of a person forged by classical jurisprudence, in which, ne a point on it, persons are de not to put too ned as possible parties to a W W lawsuit, possible terms of legal nexuses. This practical-philosophical conception of a person is to be distin- guished, at least notionally, from that of an agent simply, or anyway from agent a certain conception of an agent. An , we may say, is something that operates on the strength of practical reasons or thoughts or considerations. It is something that can be viewed as doing one thing for the sake of another, according to concepts, or equivalently, I think, simply as a realizer of concepts. I see a process as a phenomenon of agency, in this sense, when I see the concept through which I describe or represent the process as itself at work in the genesis of the process I describe or represent. The conception of an agent as a subject of concept-realizing processes, or of concept-governed teleology, is thin in certain respects. If we suppose that communicability is a de W ning feature of properly conceptual represen- tation, there would seem to be no impediment to speaking, for example, of collective agents in this thin sense, and of their collective practical oper- ations. Donald Davidson can write the word ‘action’ by typing each letter writing the word ‘action’ in sequence; here the concept or conceptual structure is suitably in play; it is under realization. But the high school football team in Action, Arizona, might write the word ‘action’ on the hillside above town, in gypsum dust or chalk, each member taking a letter for himself. The conceptual structure writing the word ‘action’ is then held in common by
21 353 What is it to Wrong Someone? A Puzzle about Justice / the various members of the team, and it is here again in play in a process that falls under it, but in another way. This notion of an agent, consequently, is thin in a further sense, and this is my present point. A couple of mere agents, a couple of ‘concept- nd that their concepts are crossed a bit, that they are realizers’, might W V moving in di erent and incompatible directions, trapped together in a single natural world. We need only suppose that, as an agent, each is in possession of the concept of an agent or a concept-realizer, that each brings the other under it, and that each is in a position to attribute deter- minate conceptually apprehended objectives to the other. In such an un- happy meeting, the practical representations that either agent works with V er from those it applies in interaction with non-rational will of course di animals or with minerals or vegetables; they will perhaps be, as we say, only more complex. But this is because the object with which it interacts moves in higher categories than animals, minerals, and vegetables do. The other agent is sunk in the materials with which either agent operates, as old buildings and rare birds are in criminal law. The other agent is some- thing in respect of which either agent might ‘mess up’ instrumentally. All of the normativity in the case derives from the agent’s own ends, and is thus merely monadic. This, it seems, is how things stand if we cleave to the materials analytic- ally contained in the thin idea of an agent or concept-realizer. If all else is left out of account, pairs of agents will at best provide materials adequate for an application of game theory. That game theory operates with some- thing like our thin conception of agency emerges in the fact that its erently from assignments of pairs of individual practitioners move indi V rational animals to the variables contained in their theories—assignments X Y , say—to assignments like X Inc. and Y Ltd., like Prisoner and Prisoner or the USA and the USSR. So much for abstract agency; let us turn again to abstract right and to the concept of a person—which, I want to say, is formally something quite V erent or more. The judgement X is a person , as I explained it, is essen- di tially a ‘de-relativization’ of the prior bipolar judgement X is a person in X is a sister is a de-relativization of X is a sister of Y . relation to Y . Similarly, ‘Recognizing someone as a person’ is registering her as a person in relation to yourself; it is the appropriation of such a proposition in the rst person. W Similarly, recognizing someone as a sister—saying ‘Hey, sister’, maybe—is registering her as your own sister.
22 / Michael Thompson 354 is the minimal The underlying judgement X is a person in relation to Y judgement that is contained in all of the forms represented on our table. It expresses a ‘determinable’ of which all these dikaiological judgements ex- expresses j press possible ‘determinates’. As the Fregean judgment is an object C j ), so we might the bare possibility of ( ’s entering into facts of the form j ’s and expresses the bare possibility of X is a person in relation to Y say that X , Y )or X J Y . Y ’s entering into facts of the form J( X As a de-relativization of a prior relational concept, the practical- philosophical conception of a person is formally unlike any monadic ‘con- cept of a person’ that might be found in theoretical philosophy: for example, that of Boethius, Strawson, or Frankfurt. This would be clearer if I were to replace the word ‘person’ with something like Aristotle’s isos , an ‘equal’, or , an ‘other’—though each of these would be misleading heteros in its own way. Nothing can be in any sense an ‘equal’, or an ‘other’ in person isolation, unless perhaps prospectively or retrospectively. The concept as I am explaining it is a concept of this kind. It is not attained by enriching the thin conception of an agent with further monadic properties. But the fact of diverse and overlapping dikaiological orders (a fact upon which my whole argument will turn) shows that the present conception be shifted into various gears, or of a person is doubly relational: it can itself erent keys, or supplied with various subscripts. And, as an agent sung in di V ,or heteros isos might enter as a person, into several such forms of dikaiologi- isoi erent class of ‘persons’ or cal nexus, so she might be related to a di V or under each of them. It will economize discussion if I introduce a heteroi the manifold of persons induced by a given concept to express this: namely, that of . This is the whole class of agents apt to be joined pairwise dikaiological order by concrete dikaiological relations of the type that the particular order wrongs Y ’, they are the makes available. Given a suitable gear-shift for ‘ X potential mutual wrongers in that sense. Thus, supposing that a given system of etiquette can intelligibly be seen , the induced manifold of persons will be coex- as constituting a petite justice tensive with what is called ‘polite society’, the upper crust. The manifold of persons under chess, by contrast, is the class of players of chess, the pos- sible poles of a chess game. ned conception of an agent indi V Our thinly de W erently covered individ- ual human beings and various sorts of collective agent. The practical- philosophical conception of a person must also be explained so as to admit various types of collective or corporate person, depending on the order of
23 355 What is it to Wrong Someone? A Puzzle about Justice / right in question. Lawyers speak of corporations as jural or legal persons and of states as persons under international right. Kant speaks of families as ‘moral persons’. And we may speak of baseball teams as ludic persons: just Y Ltd., so a baseball game X as a lawsuit might go by the name of Inc. v. 26 Y Sox v. the might go by the name of the X Sox. 7. A Modi W ed Roman Empire Illustrates the Concepts so far Expounded To illustrate the relativity of the concepts of a ius , a person, and a manifold of persons, and to prepare the ground for our principal argument and puzzle, let us consider a somewhat fantastic rendering of the Roman V Empire in certain periods. Di erent orders of positive right were abroad in that empire, and the connection between them was peculiarly simple and clear. ius civile In the city of Rome itself, there was the ancient civil law, or , some of it derived from the Twelve Tables, which bound Roman citizens with Roman citizens. No foreigner could possibly be linked with a Roman . At early stages, for example, no foreigner could sue a Roman in by this ius the associated tribunals with their quasi-religious procedure; none could join with a Roman to perform the picturesque ritual which inaugurated a traditional Roman contract. Meanwhile, out in the provinces, in Palestine, say, or in Greece or Asia Minor, there were other equally traditional private-legal systems adjudi- cated by traditional local authorities—here again frequently with a reli- gious coloration. No Roman citizen would sink to such a debased level, of 26 Impatience with the idea of collective agents and corporate persons often parades as a sort of metaphysical hard-headedness, but I think that its real source, laudable in itself, is in cally moral case, in which individual reasoning animal agents— intuitions belonging to the speci W each with two eyes and two ears—are the real business. It is these especially whom our heroine, the bearer of the virtue of justice, herself two-eyed and two-eared, takes ‘into account’ or takes ‘seriously’; it is these especially whom she opposes to herself, each as ‘another’ in thinking the thoughts of true justice. For her, unlike a lawyer or a game theorist, ction’. It will fall o a corporation or state will seem to be something in the nature of a ‘ her W V cally moral radar. She will meet the claims of any such thing with a certain impatience, W speci people in question. All of this is a consequence of the wondering how things stand with the particular gear setting our heroine distinctively deploys, and has nothing to do with meta- physics.
24 / Michael Thompson 356 course, nor would it make much sense for an Athenian to bring com- plaints to the authorities in Jerusalem. Most such local systems would, for example, have instituted their own equally picturesque formalities for the formation of a contract, quite di V erent from those prevailing in Rome. ius gentium , W But nally, for the empire as a whole, there was the so-called the law of peoples, the private law originating under the authority of the . This more ‘rational’ and less procedurally grotesque system praetor peregrinus is the Roman law so much praised by our ancestors. It was a non-religious commercial necessity, one supposes, and a product of imperial expansion. This , this dikaiological order, indi V erently bound Roman with Roman ius and Jew with Greek and Greek with Roman and Greek with Greek. We may suppose, now crudely simplifying, that women and slaves fall cally legal practical relations. But we may W entirely outside all of these speci also suppose that a local form of etiquette exists among the upper class of petite citizens in Rome, and another in Athens, and so forth. Each forms a justice binding the men and women there alike with men and women. In each city the local allots its bearers distinct positions according petite justice to gender and age. To complete our picture—at least for the moment—we may also sup- pose that some particular competitive game has overtaken the empire, a little known ancestor of chess, let’s say. Its following includes members of all nations and classes: in chess, as we know, there is neither Jew nor Greek, man nor woman, freeman nor slave. We have thus imagined a plurality of dikaiological orders and a corres- isoi . A slave or mutual ponding plurality of manifolds of persons or heteroi in Rome, a captive Scythian, might be a person under chess or a chess- person—a chess-player, as we say. He is apt to fall into chess-governed, or chess-indexed, bipolarity with his master or with a visiting Athenian notable, assuming they too know how to play. A Roman wife might be a ‘player’ and moreover also a ‘lady’—a special type of person-under-the- local- petite-justice . A male head of a family in particular might wear many of ‘others’ in hats or crowns, and command the attention or Achtung erent ways, practically speaking. At least two of these will be several di V private-legal: one type provincial, the other cosmopolitan. But the class of attending ‘others’, the associated manifold of persons or heteroi V er according to the hat or crown worn. If he is to grasp his , will di situation, each agent will himself have to operate our forms of judgement V erent gears and identify a suitable range of rst-personally in several di W
25 357 What is it to Wrong Someone? A Puzzle about Justice / ‘others’ corresponding to each gear. It should be noticed that each mani- nitely extensible. The W fold of persons we have considered is in a sense inde rules of chess do not need to be rewritten when the number of players doubles, nor does a profound understanding of Athenian private law depend on any knowledge of the number of persons who are related to one another under it. Manifolds of persons expand and contract according to the form of dikaiology in question, but this need not just be a matter of the crowning and uncrowning of individual natural human agents, as a woman might be crowned in chess and etiquette and uncrowned in provincial and cosmo- politan private law. For we may also suppose that non-human, non-two- eared agents appear under some regimes and disappear under others. Any- thing we would ordinarily call a ‘corporate’ agent is, we may suppose, completely invisible to the traditional local systems, below their radar. But let us suppose that certain sorts of corporation do appear—through repre- 27 sentatives—in the general courts of the empire. The workings of the system involve the deployment of propositions assigning corporate agents legal duties to, and rights against, other corporate agents, and also toward individual ‘natural’ persons or human beings. ‘Wrongs’ can be committed against them, debts left unpaid, and contracts violated. Certain corporate agents, then, belong to the manifold of persons induced by that particular order. We might similarly complicate our empire by imagining, say, a 28 cosmopolitan team sport. 27 In actual Roman antiquity there was apparently comparatively little of this, but examples are sometimes found, for instance, in the treatment of municipalities and of the burial soci- eties as instances of which many primitive Christian churches are said to have originated. See P. W. Du Personality in Roman Private Law (New York: A. M. Kelley, 1971). V , 28 If in Roman antiquity corporate ‘personality’ was little developed, this is presumably because such a thing awaits the development of deeper forms of market relationship than existed in antiquity. The thought might naturally form, then, that primitive legal systems look to natural persons, whereas more advanced systems recognize corporate persons. But if the notion of a corporation is taken less narrowly, something close to the reverse comes to seem the case. It is often said that in primitive legal institutions the typical term of a private- ,an oikos paterfamilias merely represents this domus legal relation of right is a household, a ; the collective. In so far as this is a reasonable interpretation of the traditional local Roman was the ius gentium rst among Roman systems to ‘see’ institutions, then it is not true that the W W corporate agents, however obscurely; we could as well say that it was the rst to see the individual human being or ‘natural’ person, and to bind one of them to another after the fashion of a private-legal system. Within the traditional system, the family or household was the real
26 / Michael Thompson 358 29 Nagelsatz runs, A person is indeed , as the one among many, all equally real but there are many ‘many’s, many manifolds of persons, into which con- cept-realizing agency of one type or other can be inserted. The existence of any such manifold, as such a manifold—its distinctness from some arbi- trary set of agents of one type or other—has certain metaphysically dis- tinctive conditions, as we will, I think, see. cally Moral’ 8. Three Possible Theories of the ‘Speci W Case: Hume, Aristotle, and Kant (Our Puzzle will be This: That None of Them Seems to Work) Armed with these thoughts, let us remember that in our picture of this imagined empire we have left something out. We have left one type of crown undescribed, one shape of yoke unhewn, one form of pairing un- considered, one manifold unsynthesized. A bearer of the virtue of justice, we have supposed, operates with our bipolar forms of judgement and throws them into a particular gear. Our heroine thinks ‘ ,it I can’t do A ; I have a duty to her’, and she thinks it in a speci W c way. Sylvia might kill Or she thinks what might be made articulate in that way. She has given cally moral turn. How, though, are we to our bipolar forms a new, speci W interpret this intellectual phenomenon, this solid crystal buried among the coarser overlapping dikaiological strata of our imagined empire? If our virtuous agent is lucky enough to have legal relational duties as , then well, and maybe ludic relational duties and duties under a petite justice for some of these grounds representations of these might of course provide W cally moral’ bipolar judgements, which nevertheless should be dis- ‘speci tinguished from them. If justice is a genuine virtue, if it is not a sham or a W cally moral dikaiological kind of practical idiocy, then some of these speci thoughts must be true. Let us pose the interpretative question in this way, approaching it per- haps a bit indirectly: Where is the new line to be drawn? What manifold of is induced by the form of bipolarity or being-toward-another and persons other-to-each-other that is at issue in the thoughts of our heroine, the proprietor and could be made to answer with its property for delicts arising from the oper- ation of father, son, daughter, slave, and cattle alike. 29 Thomas Nagel, The Possibility of Altruism (Oxford: Oxford University Press, 1970), chs. 9–12.
27 359 What is it to Wrong Someone? A Puzzle about Justice / genuinely just human being, and in our own representation of her as acting from ‘reasons of justice’ in a particular case? In what ‘many’ does our just agent implicitly locate herself as ‘one’ in thinking the thoughts of justice? What puts her into connection with Sylvia, thereby inducing a class of others to whom she might intelligibly be similarly linked? Three traditionally accredited conceptions of the matter compete for W rst, the doctrine of our allegiance. There is, , that justice is an Hume cal virtue, as he puts it. It rests on a convention, as he says, or on a W arti 30 For Hume, then, there is no great break ‘social practice’ as we might say. between the sort of bipolarity our heroine distinctively registers—that is, the type of pairing of representations that she characteristically e V ects— and the sort found in more sophisticated later developments like private- legal institutions, in which appeal is made to an independently isolated judging agent and to a notion of market equivalence. Both alike are W matters of custom, or ‘arti ce’—as also are the still more advanced prop- erly political institutions, in which rules of positive right are consciously altered and adjusted, and merely monadic norms adopted for the solution of large-scale collective action problems. If the Humean conception of the matter is right, then the manifold of persons into which our heroine implicitly inserts herself will at best (I will suggest) be the class of bearers W c historically developed right-making practice under which of the speci she falls and which she has, as we say, ‘internalized’. and St Thomas and lately, I think, There is, secondly, the view of Aristotle 31 , Philippa Foot of that justice is a ‘natural’ virtue, a ‘natural’ excellence: it is as a something that makes a human being good or excellent or sound —that is, as a bearer of the particular life form it bears. The human being formation of the associated type of representation of others as ‘others’, or as persons—the comprehension of ‘oneself’ as ‘one among many’ after the manner of our heroine—would on such a teaching be accounted an aspect cally human of sound speci W development. It is to be compared—but also of some course in many ways contrasted—with the mastery of a language (of human language), or even with the formation of eyes and optic nerves, and of the parts of the brain that W gure in, say, the recognition of human faces. The individual human is seriously damaged, as a human, if it lacks 30 , ed. L. A. Selby-Bigge (Oxford: Oxford University David Hume, A Treatise of Human Nature , An Enquiry concerning the Principles of Morals , § III. Press, 1988), book III, part II, §§ I–VI; idem 31 Natural Goodness (Oxford: Oxford University Press, 2001). Philippa Foot,
28 / Michael Thompson 360 any of these things. Human action and life, detached from the peculiar representation of oneself as ‘one among many’ that is characteristic of the just agent, might on such a view be compared, at a rather high level of abstraction, to the ‘movement’ of a detached frog’s leg. A teaching of this type might be developed in a number of ways. It is of course consistent with its central thought that the dictates of this virtue V ected by some of might, in respect of a given pair of agents, be massively a the so-called social practices under which the pair happen together to fall. Similarly, Hume’s doctrine is consistent with the idea that some funda- mental justice-inducing customs should have grown to encompass an extensive empire (non-politically speaking), but that their dictates in the case of a given pair might be massively a V ected by some of the more local and determinate justice-inducing ‘practices’ that the agents in question happen both to bear. On an Aristotelian account, though, every bipolarity- custom inducing will be understood as either determining, decorating, or competing with a deeper form of dikaiology of a categorially distinct type, not merely a more extensive form of the same basic customary type. On such a conception of the matter, it is thus intelligible to speak of relations of ‘moral right’ as joining pairs of individuals who share no social practices er any one common Bildung . In this it contrasts, I V or institutions nor su think, with the Humean doctrine, properly understood. Nevertheless, the class of individual ‘persons’ with whom a just agent is prepared to reckon pairwise will, on this view, at best (I will suggest) be the class of bearers of the nature or life form in question, the class of all human beings. 9. Excursus on the Concepts Life Form and Practice Before describing the third competing conception of the manifold of per- Kant sons into which our heroine inserts herself—the view, namely, of —it may be well to emphasize three points about the leading concepts on which the Humean and Aristotelian doctrines turn. These are the concepts practice species , respectively—or form of life and life form , as we might and and W rst nature , as we might equally better call them, or again second nature 32 well call them. 32 and , and their relations, in my paper ‘The Representa- I discuss the concepts life life form tion of Life’, in Rosalind Hursthouse, Warren Quinn, and Gavin Lawrence (eds.), Virtues and practice or social Reasons (Oxford: Oxford University Press, 1995), 247–96. I discuss the concept
29 361 What is it to Wrong Someone? A Puzzle about Justice / rst the concept species or life form . The W rst point to emphasize Consider W of occupants of this is that it is perfectly intelligible to speak of a pair category which are exactly the same in their inner constitution, but are distinct life forms or . Such is the relation that the life distinct species nevertheless form you and I share bears to the life form shared by all the exactly similar humanoids up on the philosopher’s Twin Earth: they are on all accounts properly ‘twin humans’, not humans; their form is not human form but twin human form. The anatomical, pathological, and cardiological text- books published up there may say exactly the same things as ours do, and the diagrams may look exactly the same, but their treatises are speaking of and diagramming something else. Any other view would make the content of the treatises analytic. The distinction appears to hold despite the fact - that a life form is in some sense something universal or general or inde W nitely extensible, or is internally related to something that is. Occupants of the category social practice may likewise be the same in their inner constitution, though they are, again, distinct practices . So it would be with an independently developed Twin English spoken somewhere in the erent language. If Captain Cook, overhearing V South Seas: it would be a di the locals, mistakes them for fellow English speakers—descendants perhaps of earlier shipwrecked Englishmen—he will be wrong. And if he asks (in English), ‘Do you know where I can get a shave?’ and they answer (in Twin English), ‘Go up Mindanao Avenue three blocks, turn left on to Fiji and you’ll see it on your right,’ and in the end he even gets a shave, still this will not be a conversation; nor, more obviously, will Cook be gaining testamentary knowledge about the places of things. Grammars and diction- aries of the two languages (written, let’s suppose, in a third language) will erent V say all the same things, but they will once again say them about di things. This again holds, despite the fact that an individual language is W nitely extensible. something universal or general or inde Similarly, anticipating a bit, we may suppose that on the frontiers of our empire some class of people, call them the Lombards, have a system of W cally moral form of right-inducing personal private law—a not speci ‘social practice’. The system is completely decentralized and traditional; it does not put its bearers into ‘political society’ with one another, constituting practice in my paper ‘Two Forms of Practical Generality’, in Arthur Ripstein and Christopher (Cambridge: Cambridge University Press, 2001), Morris (eds.), Practical Rationality and Preference (Cambridge, Mass.: Life and Action 121–52, and more extensively in my forthcoming book Harvard University Press).
30 / Michael Thompson 362 government proper. When disputes arise, a jury of fellow Lombards is xed rules, and the case is decided according to W empanelled according to time-honoured principles which one learns along with one’s language and religion. Meanwhile, across the Alps, philosophers have arranged that by a freak accident unrecognized on either side, another people, the Schlombards, can be found working with a sub-political system of private right that is exactly the same in every respect. The formalities necessary to the forma- tion of a contract are the same, as is the age at which the capacity to contract is acquired, etc. Still it seems plain that the two peoples will not share a common system of personal private law. They do not appeal to the same time-honoured principles to settle disputes, but to di V erent principles with exactly the same con- 33 . tent We may suppose that the languages these peoples speak are also exactly alike, a member of either crowd calling herself (in her language) a ‘Lombard’. In that case, if a pair of agents from the opposing groups meet by chance in the Alps, they would both have every reason to think that they are both (as each would put it) ‘Lombards’ and that they are, say, concluding a valid contract with this particular assemblage of song and dance. Again, though, it seems plain that they are not—no more than they are engaging in a genuine conversation in the process of ‘bargaining’ that leads up to the seeming contract-sealing ritual. I will try to say more about why this is so a bit later. Another example: suppose that many of the Lombards have learned to play chess from wandering Roman soldiers, but that the Schlombards have an independently evolved game that is exactly the same—a twin chess or V tzschess. Chess and tzschess are, once again, di erent games with exactly the same . As a result, at least on rst meeting, in ignorance of these facts, there rules W 34 will intuitively be nothing that the ostensibly opposed players are playing. 33 V airs writes as follows: ‘In 1926, the Swiss Civil Code The Turkish Ministry of Foreign A and the Code of Obligations were adopted by the Turkish Parliament with minor modi W ca- tions as the Turkish Civil Code and Turkish Code of Obligations. The Code of Civil Proced- ˆ ure, brought into force in 1927, was adopted from the law of the Swiss Canton Neucha tel’ ). Here it is clear that the Turkish Republic is institut- (see http://www.mfa.gov.tr/grupe/eg/eg27/11.htm as some of those of the Swiss ing its own laws, but that some of them are the same in content Federation and one of its cantons. It is not that the territory governed by the procedural laws ˆ tel was extended to cover Asia Minor. of Neucha 34 We might introduce a systematic way of representing these distinctions. Given the name of any practice or life form, we su Y x an asterisk to it, writing ‘English*’, ‘human*’, ‘Lombard
31 363 What is it to Wrong Someone? A Puzzle about Justice / A second point to be emphasized is that occupants of either category supply a kind of background for the interpretation of particular phenom- ena pertaining to their individual bearers. Thus, for example, it is because English this pair of speakers speak and are speaking that the one, in saying told the other to cut it out ‘Cut it out’, can be read as having . In another V language the same might be said in di erent sounds; in yet another, the same sounds might say something di V erent. And it is because the players chess Black’s king’s are playing that this distribution of pieces can count as being in check . In an unorthodox chess some of the pieces might have di V er- ent powers, so that other distributions of them count as ‘check’. And it is , as Rawls says, baseball because of its connection to the practice of playing 35 bat . that this ‘peculiarly shaped piece of wood’ is a On the other hand, but similarly, it is because this is a sugar maple that this mass of cells amounts to a ; in another form of vegetative life, any leaf such thing would constitute a cankerous excrescence, and something quite erent would count as a leaf. And so, likewise, it is because this is a V moon di that these bits can be understood to be jelly . And, W nally, it is W sh tentacles that these aggregates of because I am a esh and bone add up to human being X , not excrescences—and these movements to , and this arms my moving my arms . A life form is in this respect like a language that pallor to an expression of fear 36 physical matter can speak. A third point to emphasize is that there is no reason to think—and it is no part of either theory, Humean or Aristotelian, to hold—that a shared be right-inducing or justice- practice or a shared (intelligent) life form must inducing: no more than a form of animal (i.e., sentient) life must be sighted, and no more than a language must contain an expression for Schadenfreude . The English language and ‘solitaire’ are practices or customs in the sense that Hume is using. But neither of them is intuitively right-inducing; law*’, ‘chess*’, etc.; the resulting term covers any practice or life form with exactly the same inner content as the one covered by the unasterisked name. Captain Cook’s islanders speak Twin English, which is an English* and of course a Twin English*; Captain Cook speaks English, which again is an English* and a Twin English.* The exactly similar Twin Earthers are twin humans, unlike us, but they are bearers, like us, of a human* life form and a twin- human* life form. Tzschess, like chess, is a chess* and a tzschess*. In general X * X * and Twin X X are distinct. are the same, though and Twin 35 Collected Papers John Rawls, ‘Two Concepts of Rules’, in , ed. Samuel Freeman (Cambridge, Mass.: Harvard University Press, 2000), 20–46. 36 life form species is developed at length in my essay on ‘The This feature of the concept or Representation of Life’, part II: ‘The representation of the living individual’.
32 / Michael Thompson 364 certainly solitaire isn’t. Similarly, on Foot’s view, though she does not emphasize it, there is no reason a priori to say that an intelligent life form could never be one of which Hobbesianism, say, is true, and thus one for which prudence is the only really fundamental virtue. Nor does she sug- gest that there could not be a life form in which the arguments of Calli- cles—that what is praised hereabouts under the name of ‘justice’ in fact drags its bearers down and declaws them and renders them harmless, and so on—would be sound. Why shouldn’t that be possible? It is just that it 37 W isn’t so with speci cally human beings, she thinks: for us there is justice. 10. The Received Conception of the Manifold of Moral Persons is Abstract But let us return to our three conceptions of the manifold of persons in which our heroine is lodged. In addition to the Humean and Aristotelian W conceptions, there is, nally, the received conception, the Kantian and neo-Kantian conception (though it is not only Kantian and neo-Kantian). This should perhaps be called, rather, a family of conceptions. The mark of membership in this family of conceptions is that the speci W c ‘many’ of which our heroine sees herself and Sylvia each as ‘one’ is identi W ed with ,or all rational animals the something like the class of all rational all agents ,or ,or animals who can act on principle all ‘persons’ in the monadic sense of Boethius or . Strawson or Frankfurt One feature that all of these concepts share is that a pair of agents can come together to fall under any one of them in complete natural-causal independence of one another, without any shared dependence on anything we can understand as a common source. There need be no one common account of it that practical reasoning or principled action or second-order desire goes on in this two-eared animal here on Earth, say, and can also go 37 Foot’s book has two components. One component, which we might call formal Footian- ism, is an analysis of the concepts of genuine ‘reasons’, ultimate ‘normativity’, and true ‘value’; all are brought into connection with ‘natural goodness’. The analysis holds, if it holds, wherever in the cosmos these concepts gain a foothold in discursively thinking agents. But a di V erent component of her theory—substantive or local Footianism—appears in her arguments that justice and prudence are, as a matter-of-fact, genuine virtues among human beings. The interest of her book does not stand or fall with these latter claims: the exposition of formal Footianism might rather have been annexed to a sort of substantive Hobbesianism in which, say, prudence alone is human virtue.
33 365 What is it to Wrong Someone? A Puzzle about Justice / two-eared one on Twin Earth and in that two-antennaed one on in that up there on Mars. Developments have perchance taken this turn in each case; the capacity for the phenomenon in question has come to be on these three planets—as vision has come to be independently several times on this one planet—by familiar processes of variation and selection. nition of Bo- W Let us elaborate the point by considering the classical de 38 ethius: a person, he says, is an ‘individual substance of a rational nature’. , Martian are three ‘rational natures’, we may , and twin human Well, human suppose; they are three ‘forms of intelligent life’. Since the origins of these species or natures or life forms are, by hypothesis, entirely independent, the hypothetical homogeneity of the agents, as reasoning, would appear to be entirely accidental. Yet individual bearers of these several life forms will all alike be ‘united’ under the one concept person that Boethius is forging, even including Martian babies and Twin Earth idiots. It is the same, I think, with any grand abstract concept under which a self-constituting self- philosopher might bring herself and her friends—say, conscious subjecthood under a practical identity . That sort of thing might chance to break out in the Andromeda galaxy quite as well as it might down here. It cannot be so, though, with the class of co-practitioners of a single Lombard law ,or practice like . The homogeneity of the English language ,or chess the agents who come under any one of these is not an accident. Nor can it , Norway rat , be so with co-bearers of a single genuine life form like red oak twin human human Martian . An individual object’s falling under any one of , ,or the italicized concepts is always a matter of its falling into a single, natural- istically intelligible, trait-transmitting historical succession. Or rather, this is the only way we can understand these categories—life form and form of life—to be realized in nature as we know it to be. Falling into a succession habituation into a practice of processes of reproduction of a life form are and of 39 respectively schemata of these categories, as we might say. In bringing a concept we bring them such pair of individual objects together under one 38 W nition is discussed and defended by Aquinas, , Ia, q. 29, Boethius’s de Summa Theologiae art. 1. The concept is of course intended to cover not just people, but God and angels. 39 Perhaps other schemata could be imagined: for example, on theological hypotheses. one divine idea, could people each of several Perhaps God, operating in accordance with planets with an original pair: Adam and Eve, Adam* and Eve*, etc. In that case we might perhaps speak of them all as sharers in some one single life form, interpreted as a sort of divine archetype. Similarly, God might perhaps be said to teach agents in diverse galaxies some one language, or some one game; ‘the language’ or ‘the game’, considered as something present in many, would then itself be identi W ed with the archetypal idea. But our point about
34 / Michael Thompson 366 under a common interpretative background, and we bring their homogen- eity under a single common account. We can thus see this homogeneity as ‘no accident’ in a perfectly intelligible way. It seems plain that any concept under which I fall together with a twin human will not have these fea- tures. There would thus appear to be a radical distinction between concepts , and Boethian person , agent rational animal speaker , on the one hand, animal , , like human and those like twin human , speaker of English , player of chess , and Norway rat , , , on the other. The former we might call ‘abstract’ class concepts, Lombard and the latter ‘concrete’. The mark of a Kantian or neo-Kantian or ‘re- ceived’ type of account can then more clearly be stated: it uses an osten- sibly abstract class concept to identify the manifold of persons in which our heroine implicitly locates herself. Just for this reason, though, received cult to maintain once the nature of our bipolar views are all very di Y nexuses is properly grasped; the metaphysical consequences of all such views are quite extraordinary. Of course, the other two views, the Humean Y and Aristotelian, face di culties of their own. And this is my puzzle: we seem to be unable to supply an unproblematic interpretation of the thoughts that are distinctive of our heroine. 11. Apprehension an Order of Right within the Manifold of Persons it Induces: Our Chief Lemma To see the di culties, let us return to the question of practical bipolarity Y in general. Suppose that I am drifting through the empire we imagined, saturated as it was with overlapping dikaiological orders, diverse gear set- tings, and expanding and contracting manifolds of persons. I now overhear the words ‘You’ve done me wrong’. The context makes it plain that this legally could be expanded into ‘You’ve done me wrong, speaking’. We will not concern ourselves with the particular contents. Our abstract forms are life forms and practices as supplying a common account of the homogeneity of many bearers would still, I think, have to hold. It is a central feature of a life form or practice, I think, that it should in some sense account for individual bearers’ coming under it: each life form or practice is a ‘concept that procures its own existence’, as Hegel often says, or a ‘universal that provides its own instance’. On naturalistic assumptions, it would seem that this structure can only be realized where a thing’s coming under this form or universal arises through the operation of prior bearers of the form—that is, through reproduction or habituation.
35 367 What is it to Wrong Someone? A Puzzle about Justice / cally legal or juridical sort of way. In being deployed, and in a speci W interpreting such words, and appraising them for truth, I must link them rst with a particular order of private right. Is it the local provincial one, W or the general imperial one? In which manifold of persons is he implicitly locating himself and his interlocutor? If our speaker actually names one of these regimes of positive private right in the discourse we are trying to interpret, then that will decide the matter: ‘I have a contract with you, Marcus, under the ius civile of our immortal Roman forefathers,’ he says. Fine, he means the local system; the dikaiological thought he is expressing has been shifted into the local gear. But why does that decide the matter? It is presumably because his use of this name, , bears some relation of dependence, perhaps causal ius civile dependence, on the particular regime of right named. Of course, we can say as much of the relation that the name of a lake bears to the lake it is the name of. My thoughts of Lake Michigan, are about Lake Michigan because they somehow depend on it. But it seems that an order of private- legal right is not something that just stands there like a lake. It is not something to which an agent might just happen to refer in making judge- ments about ‘rights’ and ‘duties’. That is admittedly how things would stand with a comparative jurist or legal anthropologist who happens upon the scene. But (I want to suggest) the bearers of the system cannot intelli- gibly be supposed to relate to it in that sort of way. generally I have maintained all along that a deployment of our bipolar deontic machinery is empty thought, spinning in a frictionless void, if you like, W c gear attaching it to a de nite until it has been thrown into a speci W . My present thought is that we must also hold ius dikaiological order, or the converse: a dikaiological order cannot exist unless the manifold of ‘persons’ or isoi or heteroi it joins and opposes manage to throw these abstract forms of judgement into a gear that refers to or expresses it, even to name it with a phrase like ‘ ius civile if they are not in a position explicitly ’. ius A and the concepts through which the associated nexuses are expressed must come into the world together. This of course does not mean that any single agent who comes under such an order, and is a ‘person’ under it, is in actual possession of suitably adjusted dikaiological concepts or the associated person conception. He might be too young or too dim or too mad to grasp such things. How befuddled and ignorant an agent can be and still count as a ‘person’ under a given order will depend on the order in question, just as the range of
36 / Michael Thompson 368 potential ‘wrongs’ and the conditions of their imputability will. In a com- petitive game like chess the requirements are comparatively high. To count as a chess-player, or as a ‘person under chess’—and thus to be positioned to fall into chess-governed bipolarity with another similarly positioned—an agent must know or at least be learning something about how one plays chess. She, or her teacher, must know something about the moves one ‘can’ and ‘can’t’ make in a chess game played with, or rather against, another chess-player. This knowledge will deploy our directed deontic machinery in a chess-related gear: homogeneous dikaiological thought will thus appear on both sides of the chess-board. In what we are calling the ‘speci W cally moral’ gear setting, by contrast—the one distinct- ively deployed by our heroine—it would seem that even the dullest infant will count as a person and be wrongable in many of the ways in which Sylvia, a highly re X ective grown-up, is. We must content ourselves, then, with a rather weak proposition: the real existence of a dikaiological order, and thus of a contentful deployment of bipolar deontic concepts, presupposes this much, that the apprehension of the appropriate deployment of bipolar deontic concepts—and the same deployment, in the same gear setting—is a typical attainment within the associated manifold of persons. Otherwise no dikaiological nexuses can join any of them to any of them; we would have a mere set of agents, not a manifold of persons. And so too the imagined deployment of dikaiological concepts will be contentless. A manifold of persons must be a genus, an nitely extensible class, within which apprehension of the associated W inde ̄s epi to ho form of practical opposition holds typically or ‘as for the most’, , as Aristotle says. This weak lemma is enough, though, to introduce polu numerous metaphysical subtleties into our enquiry. In fact, a parallel claim would seem to hold for all forms of deonticity, bipolar or not. Consider the classical formulae ‘A law must be promul- gated’ and ‘Ignorance of law (or of ‘‘principle’’, or of ‘‘the universal’’) does W ed, especially in not excuse’. These propositions must no doubt be quali their application to positive law; but we can, I think, see that they rest on deep features of deontic judgement in general, and in fact express the same deontic truth of a given type is not there to be fundamental idea. Each means that apprehended or to bind until ignorance of it among those whom it binds is rendered excep- tional . Apprehension of it must be ‘no accident’ or somehow typical. This is the state of things that the Greek tyrant intuitively failed to e V ect—the one, namely, who is said to have placed his ‘criminal legislation’ on the top
37 369 What is it to Wrong Someone? A Puzzle about Justice / of a high pillar, so that it would be impossible to read. Again, though an agent’s grasping his deontic situation must in some sense be the standard case, whatever form of deonticity we may have in view, it may of course be that the ‘standard’ case is statistically rare, and that valid excuses are very common. What is distinctive of our bipolar deonticities is that this weak condition both applies at poles of the typical, or ‘standard’, dikaiological relation. Their relation must be something that the agents at either pole can be wrong about, of course, but it must be something upon which they can be in agreement. The fundamental ques- non-accidental agreement, and in suitably tion of general meta-dikaiology is this: What can put such a structure in place? 12. Illustrative Theological Application of our Lemma We might elaborate on these ideas by again moving outside our empire and adding one more spectacular thought experiment to our collection. Sup- pose that God gives a positive law, a list of ten ‘commandments’, to all the Hebrews. All of the actions that this Law requires will be ‘required by reason’ as well, on ordinary theological premisses. But we can distinguish two senses of ‘necessity’ in the matter: only one of them, rational require- ment, had application to anything before the appearance of the Law. Indi- vidual Hebrews were rationally required to do various things before the appearance of the Law—to brush their teeth, for example—but they were not bound by the Law to do anything. Let us consider now a heretical variant in which lists of ten command- to the heads of each household, as separate acts of ments are given separately at. We can make the same twofold W revelation, separate cases of divine conceptual distinction in each household’s case: there is what reason re- quires, and there is what the Law given to it requires. The latter, we piously a Y rm, is always included under the former. It will seem a some- what academic question whether the forms of ‘deonticity’ inaugurated by these several hundred acts of divine legislation and domestic reception are V V erent lists have di V erent the same or di erent. If we suppose that the di ingredients, and that each is to govern its recipient’s household and the households of all its male descendants, then it is clear that we have im- agined something like the inauguration of several hundred nations all with
38 / Michael Thompson 370 the same divine sovereign, but each with a separate divine positive law and erent theological gear setting for deontic vocabulary. V adi erent, If now it perchance happens that, though they are otherwise di V several or indeed all of these lists have some one item in common—not to kill any ‘reasonable creature ’, for example—then, in acting in rerum natura V in obedience to this item on its own list, the members of di erent house- 40 holds will be . erent principles, but principles with the same content V acting on di Any ’, a visiting angel or a Martian, for ‘reasonable creature in rerum natura example, will be relieved to learn that a household nearby is subject to such a constraint, and may come to reckon on the impediment. But it is no part of the constitution of that constraint and the genus of deonticity contained in it that those extra-domestic reasonable creatures should is happen to know this, as it part of the constitution of the divine law of a if its members grasp its terms. In given house that it should be no accident particular, it is no part of the constitution of the constraint attaching to is grasped or tends to be grasped by the any one household, that it households which live under similar such Laws. members of other nearby Indeed, it might be legitimate and reasonable to try to keep it a secret that one is thus bound. So, now, though members of each household are kept from killing members of any household, as well as any ‘reasonable’ space aliens who erent principles and are V might happen by, they are all operating on di under di V erent Laws. The explanations of the apparently similar thoughts will be di V erent in di V erent households, and the index ‘I’m forbidden ...’ V of the deontic operator will be di erent as well: the several Laws are as erent as the ‘Old Law’ and the ‘New’ are supposed to be. But just for di V this reason, I want to say, it is impossible to view the situation as one in which the members of the di erent households have fallen into relations V of right. Y rms the propos- Wesley Hohfeld, in his discussion of ‘legal relations’, a has a duty to Y to do A ’ and ‘ Y has a right ition that our two forms, ‘ X that he do X ’, in its ‘claim’ use, represent the same ‘legal’ or against A erent points of view of the legal persons caught V ‘jural’ relation from the di 41 up in it. His implicit thought, I think, was that the possibility of such a 40 I am presupposing, for purposes of argument, a ‘divine command theory’ positivism, which would hold that no one has any special reason to avoid this apart from divine legislation. 41 Hohfeld, Fundamental Legal Conceptions , 40.
39 371 What is it to Wrong Someone? A Puzzle about Justice / that someone in the position of X can potentially bipolar nexus presupposes , and someone in the position of Y think: I have a duty to Y to do A can think: . To speak of a ‘possibility’ of such conver- I have a right against X that he do A gence might perhaps be too weak, as we have already noted; rather, there must in the nature of the case be a tendency for each side to grasp the W appropriate rst-personal thought. This type of relational fact is generally internally related to two points of view that might be taken on it; it is such as to be registered by each of its poles. In this it di ers from facts of the V X is taller than Y , and spatial relations generally; such relations are type erent to conceptual apprehension by their terms. But, V completely indi now, if there is to be such a harmony of judgement, there must be identity in the chief concepts the judgements deploy: namely, those expressed in our tabulated abstract forms, considered as shifted into a particular gear. It X is the same with the deeper thought form implicit in all of these forms: is a person in relation to Y , again considered as set in a particular gear. This 42 Foundations of Natural Right , is a concept for two. concept, as Fichte says in It cannot generally be left to the relata to grasp the appropriate gear setting, the appropriate form of pairing, through abstraction from (say) external anthropological experience—for deployment of the gear setting in question must already be present in the materials from which an external anthropological conception of it might be abstracted. Our non- external-anthropological account of a determinate dikaiological gear setting’s arising in one agent, or of one agent’s thoughts as set in it, must exhibit a source through the operation of which the same gear setting gure in the thoughts of the other agent—even, and especially, if W might X the pair now go on to con ict in the particular judgements they frame in terms of it. And because a dikaiological order is indi erent to the number V of persons who fall into the manifold associated with it, and are potentially joined in the nexuses it constitutes, the source in question must poten- tially be such as to operate in inde W nitely many agents. 42 , trans. Michael Baur (Cambridge: Cambridge Uni- Foundations of Natural Right J. G. Fichte, versity Press, 2000), 45. Using the concept ‘individual’ where I would use the word ‘person’, and exaggerating matters somewhat, Fichte writes: ‘the concept of individuality [personality] is , i.e. a concept that can be thought only in relation to another thought, and a reciprocal concept — one that (with respect to its form) is conditioned by another—indeed by an identical completed by another thought. This concept can exist in a rational being only if it is posited as , rational being. Thus this concept is never mine; rather, it is . . . ;itisa mine and his his and mine W ed into one.’ shared concept within which two consciousnesses are uni
40 / Michael Thompson 372 These criteria are not met at our heretical Sinai, with its hundred separate tablets and manifold acts of domestic divine legislation and recep- tion. But notice that they already fail at the orthodox Sinai, where a Law is given put to all of the Hebrews at once, the content we assigned to that law in any (interpreting the text a bit): namely, not to kill ‘reasonable creature ’. It is indeed part of the constitution of the deonticity attaching rerum natura to the ten common orthodox formulae that the Hebrews should come to be in regular possession of a concept of it—that is, a new gear setting for deontic judgement. Individuals who come under the Law will only lack this gear setting , by infancy, idiocy, stopping up of ears, forget- per accidens Hebrew is a genus fulness, parental X akiness, etc. God has arranged that within which such apprehension holds as a rule. But it is no part of the constitution of this form of deonticity that any non-Hebrew reasonable creatures should ever have any conception of it at all, even though they are, as we say, ‘protected’ by it. Alien others are in this respect formally like rare birds protected by environmental legislation: not dikaiological wrongables, but raw materials for wrongdoing. If other reasonable crea- tures do come to be aware of the constraint, it will be as a matter of comparative divine jurisprudence or theological anthropology. Knowledge of the Law, whether anthropological or not, is thus within the per accidens protected genus; and so this genus is not constituted as a manifold of persons by divine operations of the type we are imagining. It may be, of course, that other classes of reasonable creatures have been given their own respective divine laws, and it may by chance be that each of these contains the precept not to kill other reasonable creatures. This ect the relation of these outsiders to the speci V W does not a cally Hebrew They do not act on the principle the Hebrews act on, but on another principle with the Law. . The structure of things is thus as it was at our heretical Sinai, same content but writ larger. Where it is a question of constituting merely monadic duty, the distinc- tion between a number of people acting under common norms or principles and a number of people acting under norms or principles with the same content will inevitably seem subtle and academic. Where it is a question of constituting an order of right, it is decisive. A manifold of ‘persons’ must together come under a genuinely common, not merely similar or parallel, form of deon- lex to ius ticity. This is not all that is necessary to make the step from ,of course, but it is enough to make the trouble I am proposing to make about the ‘speci W cally moral’ case.
41 373 What is it to Wrong Someone? A Puzzle about Justice / Let us return to our Lombards and Schlombards. Though hitherto there erent tribes, a pair of them, we V has been no connection between the di supposed, might meet high in the Alps, the Lombard inevitably mistaking the Schlombard for a Lombard—after all, he calls himself by the name ‘Lombard’—and the Schlombard mistaking the Lombard for a Schlombard. We asked: can such agents constitute a contract, and thus legal duties of one to the other and the other to the one? We can now see more clearly why not. When the songs and dances and handshakes have been com- pleted, each will indeed think he has a legal obligation of some sort to the other and a legal claim of the same sort upon him. In fact, if the putative terms of the putative contract are symmetrical (‘If you do A for me, I’ll do erence at all between the agents viewed for you’), there may be no di A V physically, functionally, dispositionally, etc. But our hypothesis in this thought experiment is precisely that this homogeneity is sheer accident, and just for that reason it is not a Hohfeldian homogeneity of thoughts : our erent things. In assigning a determinate agents are in fact thinking di V content to the dikaiological thoughts of either agent—that is, in seeing the pairings he frames as set into some one among the many particular gear settings the cosmos makes available—we must indeed advert to some- thing through which we can see another agent’s correlative or mirroring thought as no accident. And this is in each case the wider juridical practice of which the agent in question is a bearer, and which is in some sense the source of these thoughts and manifested in these thoughts. The existence of such an account explains why phenomena can be interpreted as con- taining genuinely bipolar contractual obligations of Lombard to Lombard or Schlombard to Schlombard and parties who register such facts in thought. But on our high Alpine hypothesis, the account that applies to the one does not extend to thoughts of the other; a contract-admitting gear setting is available on each side, but no contract-admitting gear setting is available on both sides. If the Roman Empire had extended far enough, and our agents had performed the formalities necessary for a contact iure , then a common account and thus a common index for dikaiologi- gentium cal thoughts might be found at both ends of the handshake. As it stands, though, there is nothing on both sides of the handshake: the type of claim the Lombard thinks he has is a claim ‘under Lombard private law’, as we might say, making the gear setting explicit; the type of ‘correlative’ duty the Schlombard thinks he has is a duty ‘under Schlombard (‘‘Lombard’’) law’. They are like ships passing in a juridical night.
42 / Michael Thompson 374 13. Preliminary Application of our Lemma to cally Moral Case W the Speci But enough of Law Positive, divine and human alike; enough, too, of games . Here again is our heroine, the bearer of true justice, acting on petite justice and to Sylvia , a duty which she knows has the strength of her recognition of a duty abstract bipolar categories have thus been no legal or ludic representation. Our brought into play. But if there is to be any truth in this pairwise representation, W c dikaiological if it is not idle thought, then it must be linked to some speci order. We are supposing that this is the order of ‘true justice’, so to speak, or the order of ‘moral rights’. And if there is to be any truth in this representa- tion, then it must be linked indirectly to some speci c manifold of persons, W the manifold into which our heroine sees herself and Sylvia as inserted. We may suppose, if you like, that the elements of this manifold are the true or real or equally real persons, and that together they constitute what is called the moral community—or rather, that these are the ‘true’ persons in relation our heroine, and this is the moral community . to to which she belongs And if there is to be any truth in this pairwise representation, there must be a possibility of a correlative representation in the agent our agent is thinking of, or rather a tendency for such thought to appear in her. Or W rather, our pair must come together under an inde nitely extensible genus within which such a tendency prevails. The tendency must be for the same thought the same gear , modulo a reversal of rst-person polarity, to appear in W at both poles of the nexus in question. But, on the other hand, it is setting only given this tendency for suitable thought to appear at both poles of the moral relation it registers that there is any contentful thought avail- able to appear, and any moral relation for it to register. This tendency might not often be realized, but it cannot generally be an accident that these correlative representations coincide. If this sometime community of to be possible, there must be a possible is of the agents’ minds account agreement with one another, of the might-be meeting of their minds. 14. The Humean View has Intolerable Moral Commitments W nding a determinate content for our heroine’s The natural way of thought is Hume’s. The thoughts of co-practitioners of a single practice or
43 375 What is it to Wrong Someone? A Puzzle about Justice / custom do indeed come under a common source and a common back- ground of interpretation: namely, the practice itself—a practice supplies a wavelength for everyone to be on, if you like. In the light of a suitably structured practice in which a pair of agents are together sunk, we can see the pairwise thoughts of either as reaching out toward completion, so to speak, by converse thoughts in the other, even if this homogeneity fails often to be realized. So a practice or custom can easily meet the criteria we have been attempting to articulate for the constitution of a determinate dikaiological gear setting and a corresponding order of right—as was plain all along from the examples of chess and and private law, which petite justice are all matters of custom or institution. Hume’s thought is simply this: that the form of practical bipolarity with which our just agent operates has this same fundamental customary character. She has acquired her thoughts with her upbringing, her Bildung , on any account; why should we not characterize this upbringing as habituation into, or initiation into, a special ‘moral’ practice, distinct from those of chess and etiquette and private law? But remember that if a given practice or custom ‘protects’ non-bearers as much as it does bearers, and in just the same way, then its dikaiological character collapses: it acquires instead the merely monadic aspect of crim- inal law or of the various divine commandments ‘not to kill’ that we considered. Possession of the associated conceptual machinery will be per accidens within the protected class. If the deontic thoughts in question are to be genuinely dikaiological, then the associated manifold of persons can only be the class of bearers of the practice, in whom the emergence of correlative thoughts will be non-accidental. Hume’s conception of the matter entails that the manifold of persons associated with our heroine’s W distinctive, speci cally moral form of thought can only be the class of bearers of that same practice—the class of those in whom thoughts mirroring hers are typically induced. Hume no doubt thought that it was enough that our relation to out- siders is governed by benevolence or natural sympathy. It simply did not ̈ ve eighteenth-century writer, that apart from justice occur to him, as a naı one might, out of natural sympathy, kill one person to remedy the plight of several others, or for any number of other beautiful purposes. A theory you should not kill Sylvia even in like Hume’s can of course explain why order to save W ve others, where you and Sylvia are bearers of a single dikaiological practice; it need only be that the practice constitutes a
44 / Michael Thompson 376 directed duty not to kill and a claim not to be killed among its bearers. But he forgot that you might kill several recalcitrant practice-outsiders in order, from the deepest sympathy, to introduce your more advanced system of practices to their more numerous backward compatriots. And this is what we cannot bear to think; and this, we cannot help but think, is what our just agent cannot bear to think. Our heroine purports to see W c practices she bears, and views her connection with farther than the speci outsiders in dikaiological terms. She sees herself as bound to, and as owing something to, and as a ‘person in relation to’, each single one of them. Sophisticated wisdoms will inevitably teach us that a ‘common sense’ W that condemns our imagined benevolent imperialist is a re ned product of certain sophisticated ‘social practices’, practices which these wisdoms may or may not feel inclined to praise. But we can now see that this same so- called common sense must reject all such accounts of itself. In seeing the practice-outsider as making as good an example of a murderable as any practice-insider, we plainly put ourselves into dikaiological connection with her and commit ourselves to the falsehood of any such account. 15. The Aristotelian View has Di Y cult Epistemological and Moral Commitments We thus feel compelled to reject Hume’s doctrine as immoral and wrong, nal analysis be the only account we can make any though it may in the W sense of. Where else can we turn? On an Aristotelian account, the generic W cally moral’ bipolar unity of agents that makes for the possibility of ‘speci nexuses is provided not by a shared practice, but by their shared speci W cally human life form itself. It is characteristic of the human being, on such an dikaiologically with account, to develop the capacity to pair itself o V others, and others with others—even if this development is unfortunately often impeded, as the development of hands is unfortunately often also impeded. But if something like this is characteristic of the kind, then it will be no accident if a pair who come under this kind exhibit correlative forms of such thought—even if, again, this possible harmony should often break down. The non-accidentality of the convergence is underwritten by the shared life form. Thus our general criteria for genuinely dikaiological judging might be met, and there could be something for these correlative
45 377 What is it to Wrong Someone? A Puzzle about Justice / dikaiological judgements to be about. The concept of the human would be the concept of a manifold of persons. What are we to think of such a construction of our heroine’s thoughts? It is often complained that reference to the human form or ‘species’ or to human ‘nature’ will introduce an unwanted empirical element into moral philosophy. It is supposed to make things somehow ‘biological’, and thus to violate the autonomy of the ethical. Kant is especially alarmist on this W point. The Aristotelian’s rst di culty is to show that this supposed threat Y expresses a distorted conception of our relation to our own life form or nature. It is in fact clear, I think, that one representation of this particular form or nature is entirely a priori: namely, the representation of it as my kind, or as my form. If I am thinking a thought of it, I might think of it as the life form manifested in this very thought, which is a bit of life , to which I might has thousands of bearers rightly attach the predicate . The question who else does come under this a priori representation, and thus how many do, is indeed empirical; but so is the question what things and how many come under such plainly ‘pure’ concepts as agent or rational being . But if each of us is in possession of a non-empirical, and thus non- cally human life form, it might be ‘biological’, representation of the speci W that is not about it doubted whether we have any substantive knowledge empirical, as our knowledge of the existence and operation of the human liver is empirical. It may thus be doubted whether the substantive know- ledge our heroine applies in particular dikaiological moral judgements can be given the construction we are considering. For we do not want to call culty is thus to this knowledge empirical. The Aristotelian’s second di Y develop an epistemology to match her conception of the matter at hand. Let us illustrate the di Y culty by contemplating a particular case. I have what we may call a ‘moral intuition’ that on the fateful day when Stalin ordered all of the blind wandering minstrels of the Ukraine shot, he 43 wronged them all. It was a horrible injustice. Of course, I might be wrong about this. But what does my thought contain? In so reckoning, I do not look to the laws or customs of the Soviet Union in the Thirties, if we can speak of laws and customs in such catastrophic circumstances. Nor do I contemplate the credentials of the particular further ends that Stalin had in view. I do not, for example, enquire how beautiful true 43 Testimony , ed. Solomon Volkov (New York: Harper and Row, 1979), Dmitri Shostakovich, 214–15.
46 / Michael Thompson 378 communism was going to be once the minstrel question was resolved. I view the matter in dikaiological categories, but in dikaiological categories that purport to outstrip any conventions, institutions, or laws. On the present view, then, my supposed ‘intuition’ is latently about the human , I am thinking, form which Stalin and I and the minstrels all share: in it in chess this counts as injustice, as moving a pawn three squares forward is cheating. In thinking this thought that is implicitly about the human form or human nature, I must further implicitly think that this thought itself is an apt expression of precisely the nature it is implicitly about, and that it would as such aptly appear at each pole of the Stalin–minstrel pairs I am considering. And thus I must implicitly think that wherever this thought is rejected, the processes typical of that form of life have been impeded. In thinking this thought, then, I must think of this thought as something other than the product of W eld-work or empirical investigation: where ignorance of liver function prevails, we need not suppose that processes cally human life have been impeded. I typical or characteristic of speci W must, that is, think of features of my life form as given to me in certain some other way, even if they might be given to, say, Martians by a subtle W eld-work. But, of course, I do think this thought: Stalin did them sort of all wrong. The Aristotelian, I am suggesting, must articulate an epistemology according to which all of this can make sense: she must show how some substantive knowledge of them is non- life forms might be such that some empirical among their bearers; she must show how it can be that an intellectual life form might in certain of its aspects be known ‘from the inside’, if you like. But isn’t there a further di culty? What about our practical relation to Y the Martians and the Twin Earthers? Can’t we frame a moral complaint against an Aristotelian account that is structurally akin to the one we raised against the Humean teaching? A human and a Martian are outsiders in relation to one another in respect of life form, and someone might have the intuition that a Martian is as much wrongable by a human being as another human being is. Here there are various avenues of defence, none rst note the di W erential status of perhaps completely satisfying. We must V X the two intuitions. Re ection on the twentieth century presents us, I am thinking, with a kind of established fact about inter-human right: we can now see, for example, that every human who ever thought it was a good idea for one human being to kill another human being for beautiful
47 379 What is it to Wrong Someone? A Puzzle about Justice / purposes was wrong. It is not simply a question of a private intuition. There is no such established fact pertaining to how things should go with W Martians: there are only intuitions about science ction cases which it is cult to think about at all. Further, we should remember that it is Y very di of course possible for items in the category ‘social practice’ to come to hold V erent intelligent life forms; through them something among bearers of di in the nature of a Humean justice might come to bind intelligences falling under various natural forms. But such practices would not unite our mutual ‘aliens’ on rst meeting. This, then, is really the case we are W considering. And here, I think, the Aristotelian can do no more than plead, as a Humean would in the parallel place, that there are other virtues rst besides justice, virtues that might protect space aliens even on our W meeting with them; our intuitions about these cases are intuitions about those virtues; they are not intuitions about that elementary justice, claims of which permeate speci W cally human life. 16. The Received Kantian View has Alarming Metaphysical Commitments nally the received view, which is that the order to which Let us consider W our just agent adverts in the thoughts of true justice induces a manifold of all agents persons that is essentially coextensive with the class of , or some ,or all Boethian slightly narrower class: for example, that of all rational animals persons . The just agent, on such a view, looks past the Humean practices into which she and others are sunk; she sees through the particular Aristotelian nature she and others bear; she attaches herself simply to the agency or the rationality of the one whom she proposes thereby to ‘do right’, or to by whom she has a horror of doing wrong. It sounds good on paper, it is the currency of academic moral theory, but what are its metaphysical presup- positions? ecting on the nexus that she registers as Let us suppose our heroine, re X binding her to Sylvia, imagines that she is also bound in just the same way any agent not to destroy , where the concept ‘agent’ is taken in the thin and broadly extended sense I explained above, so that it includes Martians and Twin Earthers, but also ExxonMobil and the football team of Action, Arizona. She won’t destroy any of them. Can she then view her response
48 / Michael Thompson 380 ? It seems not. It seems that she cannot reason- to Sylvia as a response to right in this exceptionally thin sense to be combined with ably understand agency any tendency, however often its operation is impeded, to register the thoughts she has in imagining these duties. There seems, after all, to be no reason why concept-realizing agency might not sometimes be entirely devoid of dikaiological concepts and incapable of attaining them—or, indeed, corrupted where it does attain them. If a member of this extensive class happens to have otherwise suitable ‘correlative’ representations, this will just be an accident. It thus seems that a form of deontic thinking that this entire class will not be a form of dikaiological thinking. ‘protects’ It is the same with the thicker concepts of animal agency, rational animality, Boethian personality and what Kant calls ‘humanity’. Given that a suitably robust principle of plenitude operates in the universe in which some they are applied, these abstract ideas will determine classes in which have bipolar concepts, some don’t. Among those that don’t, some indeed , by youth or idiocy, say; but others, it per accidens will only fail to have them seems, could only ever come to possess such ideas by freak accident or not at all. The virtue that protects this whole class is no doubt very beautiful, but again it seems that it is not justice, the virtue we are analysing. Let us suppose instead that our heroine attempts to avoid the problem nitional W of an over-extensive protected class by de W at, thickening the concept which covers the ‘many’ of which she sees herself as ‘one’ by explicit appeal to the idea of bipolar conception. Suppose she imagines that any rational animal who deploys she is bound in ‘moral right’ not to destroy . (Or rather, as it would have to be if the supposed manifold concepts of right is to cover the rights of, for example, the young human beings with whom any animal which falls under a genus associated with a tendency to deploy she is familiar: concepts of right .) But of course it is not enough that potential others deploy same dikaiological concepts. It dikaiological concepts; they must deploy the is not enough that they are deploying, or tend to deploy, legal concepts of right, for example. They must be able to shift, and tend to shift, abstract bipolar deontic vocabulary into the same gear she does. Perhaps she can do better by attempting to specify the form of bipolar judging in question. But how is she to specify it? It is no use saying that the ‘many’ of which she sees herself as ‘one’ is the class of all rational animals who deploy (or would tend to deploy) not just any conception of bipolarity, but a conception of bipolarity which (say) encompasses all rational animals . There is no such form of bipolarity, as we have already seen.
49 381 What is it to Wrong Someone? A Puzzle about Justice / It is clear that she cannot specify the form of bipolarity that is to prevail in her imagined manifold by reference to the manifold it induces, since this manifold is the one she is attempting to specify. We are clearly falling into a circle. Can our heroine break out of it by isolating the intended class — as that of all rational animals who grasp or tend to grasp ‘this very form of bipolarity’ namely, the one contained in her thought of Sylvia? Yes, but only because W ned is implicit in every form of dikaiological the thought of a ‘many’ so de judgement, legal, ludic, or moral. So this conception of the manifold cannot help to specify the form of dikaiology in question. If the true theory of justice is Humean, then our heroine in so thinking will be thinking of the bearers of her ‘moral’ practice—for these are the ones in whom operates a tendency to grasp ‘this very form of practical bipolarity’. If the true theory is Aristotelian, then she will be speaking of all human beings. culty would evidently beset the attempt to specify the Y The same di cally manifold as the class of W all rational beings who grasp or tend to grasp the ‘speci W moral’ form of bipolarity . Here the trouble is with the de nite article. On a Humean or Aristotelian theory, the idea of moral bipolarity is akin to the idea of private-legal bipolarity: moral bipolarities might arise independ- ently, and will therefore be di erent bipolarities, even if they are very V similar. To insist that there is just one such form of pairing is to beg the question against them. The class of cally all rational beings who grasp a speci W is not a private-legal manifold of persons unless it private-legal form of bipolarity happens that there is as yet only one system of private law in the universe, as no doubt once there was. The core question is this. Let our heroine, framing a particular dikaiolo- X ectively form the thought of ‘this very form of bipo- gical judgement, re larity’ and ‘the manifold within which this very form of bipolarity prevails’. And let another agent capable of re X ection do something that is qualita- tively exactly the same—the person next door or a human on another continent or a twin human or a humanoid in a distant galaxy. What now ectively apprehending the same will make it the case that they are re X form of bipolarity and through it the same manifold of persons? If we cannot see these thoughts as manifestations of a common practice or a common life form—if we grant that the homogeneity is a mere accident of cosmic identity ; we can history—we seem to have no way of perceiving it as an only see di erent forms of practical bipolarity that are as alike, qualita- V tively, as one pleases. Our heroine and her radically alien science W ction
50 / Michael Thompson 382 ‘other’ are in the position of the Lombard and the Schlombard, or the many houses of our heretical Israel. This conclusion seems to follow if we consider the matter in an even mildly naturalistic way. But perhaps another way of considering things is nd a suitable common available. An idealism like Kant’s might let us W account or ground of our heroine’s and the alien’s radically separate W cial mental operations—a single intelligible cause hidden below this super diversity of crude, empirically given mechanical causes. Thus could the thoughts of our heroine and her alien be opposite poles of the same thought and a true thought. This is indeed how Kant conceives of ‘pure practical reason’, if I understand him: it is like a Platonic Form which shows itself in the diverse thoughts of many rational beings. Wherever practical reasoning happens in an individual animal, PPR has a foothold, just as it does in me. On such an account, the idea of an agent not under the ‘formula of humanity’, is indeed coherent, and thus logically possible—and is outlined 44 in the Religion discussion of the ‘most rational mortal being’. But we were wrong to infer from this abstract conceptual possibility that any such agent really possible—that is, that any could actually appear in nature. Rather, is we have synthetic knowledge that this is not a real possibility, founded on our knowledge of the character of the law we W nd in ourselves. From the —that is, judgement that I ought to treat all reasoning animal agents all Kantian —thus and so, I will conclude the existence of a law of ‘humanity’-havers reason-in-general, a law I will judge present wherever in nature reasoning agency is found, even if consciousness of it has not yet been awakened or developed. The moral law drives me to respect all reasoning agents in practice, but what I properly respect is in a way ‘the law of which they 45 give me an example’, a moral law which is waiting to operate in them. the same law , not another law with the same This I must judge to be content. And so I must think that it is not an accident that otherwise radically alien practical reasoners should all alike develop this way of thinking, and thus thoughts mirroring my own, even though other ways of thinking are perfectly possible conceptually speaking. I must judge that a principle operates in nature which excludes those abstract conceptual 44 , ed. A. Wood and G. Di Kant, Religion within the Boundaries of Mere Reason and Other Works Akademie Giovanni (Cambridge: Cambridge University Press, 1998), 50–1 ( , 26). 45 Groundwork of the Metaphysics of Morals ,in Kant, , ed. and trans. McGregor, Practical Philosophy 56 ( Akademie 401).
51 383 What is it to Wrong Someone? A Puzzle about Justice / nd some reasoners who are not with the programme, possibilities. If I W then practical faith, governed by the moral law, will lead me to investi- gate what is impeding the development of this consciousness, and the associated forms of feeling, in their case. And it will drive me to do what it takes to bring this consciousness out. For the aptness, the tendency, to exhibit these thoughts is certainly there in those space aliens, some- where, if they are thinking practically at all, even in the most elementary X ecting on my own case, ‘instrumental’ ways; I know this indirectly by re from my knowledge that I live under a hyper-extensive formula of hu- manity. Thus, on Kant’s view, the recognition of another animal agent as reasoning practically is always at the same time recognition of him as a person in relation to oneself. There is no di Y culty in specifying the mani- fold of persons into which our heroine judges herself to be inserted: it is, after all, just the class of all practically reasoning animals in nature, the class of all bearers of ‘humanity’. It is just that I have synthetic knowledge ‘from within’ of a tendency to pairwise judging which prevails across this thinly de W ned genus, spread as it may be across the cosmos—a tendency which thus constitutes the genus as a manifold of persons. There is present in me a practical law, the operation of which is alas often impeded, which has all the cosmic scope of the laws of interaction of fundamental particles; its operation, we may suppose, is busily being impeded even in distant galaxies. I have nothing with which to oppose this orthodox Kantian conception of the matter, apart from a mild naturalism. But that is enough, I think Y we should grant, to make a serious di culty, and thus to complete the puzzle I have been attempting to articulate: namely, that each of the received accounts of the content of our heroine’s distinctive thought— Humean, Aristotelian, and Kantian—is faced with what can readily be felt X ict between meta- as a decisive objection. There is in this material a con cult to say in which direction physical and moral desiderata, and it is di Y we should turn. The present section poses a more direct objection, I think, to the neo- Kantian view that we can hold to Kant’s moral theory, the formula of (Kantian) humanity for example, while rejecting the strange and wonder- ful metaphysics of reason which would permit us to make sense of it. The mark of such a theory is that, in its lyrical emphasis on the ‘autonomy’ of each moral agent in respect of the ‘moral law’ she is under, it compromises
52 384 / Michael Thompson the real identity of the law to which each agent is thus autonomously related. Neo-Kantian views, if I am right, put morally virtuous agents into the position of the many households at our heretical Sinai, and not into relations of right.
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