The Southern Journal of Philosophy (1993) Vol. XXXI, No. 2

NORMATIVE ETHICS: BAD NEWS FOR THE SENSIBLE COMPROMISE? Richard Farr University of Hawaii at Manoa

I. You could, perhaps, defend a normative ethical theory

which wholly rejects consequentialist evaluation. Someone who believed that the only significant moral issue was that we keep the Ten Commandments might be like this. In prac- tice, nobody is. Consequences matter, even if there are other things which matter more.

More plausibly, then, you could defend a normative ethical theory which accepts consequentialist evaluation for some range of cases but demands absolute non-consequentialist constraints on such evaluation. Many people do: they think that murder cannot be justified by any good consequence, or that torture cannot, or that the violation of certain property rights cannot, or that deliberate commissions of injustice cannot. On such a view, whatever significance consequen- tialist considerations may have, these other values have not merely a strong presumption in their favor but an unassail- able priority. First you consider whether any course of action involves offending these prior values; only then can you legitimately even consider the consequences.

Rawls’ term of art lexical will be useful here. If the tenth commandment has lexical priority over consequences, then consequences are irrelevant to the rightness or wrongness of my having coveted your ox; only after determining that an act is not covetous do consequences come into the picture at all.1

I follow Nagel in calling a theory “absolutist” if in this way it involves claiming that some acts morally cannot be per- formed, regardless of the consequences. Nagel defends ab- solutism in “War and Massacre.” Generally, his argument for the belief (say) that murder is always wrong depends on

Richard Farr received his Ph.D. from Cornell University in 1989. He has taught at Colgate University and the University of Hawaii. He recently left academia and is now working as an independent writer. He lives in Madi- son, Wisconsin.

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denying that its wrongness is primarily a function of its consequences.2 Absolutism, he says, “gives primacy to a concern with what one is doing.”

If absolutism can be defended successfully, it defeats con- sequentialism. But it does not do so by claiming that the at- titude of “giving primacy of concern to what happens” is gen- erally irrelevant:

Absolutism does not, of course, require one to ignore the consequences of one’s acts. It operates as a limitation on utilitarian reasoning, not as a substitute for it. An absolutist can be expected to try to maximize good and minimize evil, so long as this does not require him to transgress an absolute prohibition like that against murder. But when such a conflict occurs, the prohibition takes complete precedence over any consideration of consequence^.^

Hence there are certain moral prohibitions which we rank “lexically” prior to the consideration of consequence. These prohibitions might be very general (“DO not steal”); or they might be very specific, perhaps because absolutism seems plau- sible only with respect to especially repugnant acts. (Gewirth restricts himself to claiming that a mother has an absolute right not to be tortured to death by her

Absolutism may be easier to defend than complete anti- consequentialism, but it has its difficulties, to say the least. And that is one reason for the even greater philosophical in- fluence of a third type of theory. This third type accepts con- sequentialist premises up to a point, and beyond that point demands or permits weighted (even very heavily weighted, but not lexical) constraints on consequentialist evaluation. In other words it requires a compromise between consequentialist and deontic evaluation. The strategy of compromise is com- pelling, apparently: a number of influential theories seem to depend on it. It is a welcome haven from the difficulties and even absurdities which seem to be thrown up by the other two kinds of theory. Consequently it has become a sort of philo- sophical platitude. This status has not changed the fact that it is incoherent.

11.

Mill: [Tlhe principle of utility . . . has had a large share in forming the moral doctrines even of those who most scornfully reject its authority.5 Rawls: All ethical doctrines worth our attention take consequences into account in judging rightness. One which did not would be simply irrational, crazy.6 Taylor: The modern dispute about utilitarianism is not about whether it occupies some of the space of moral reason, but whether it fills the whole space.7

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Absolutists like Nagel want side-constraints on consequen- tialist valuation; consequentialists like Mill want none. But the absolutist side-constraint is lexically superior to the value of good consequence, which means that no amount of good consequence is justification for violating such con- straints. Pluralists like Taylor want to avoid backing into consequentialism, but they think absolutist constraints are insupportable even in the kind of case Nagel offers. So their tactic is to make three claims: (1) consequence-maximization is the proper form of evaluative concern in general; (2) there are some cases to which, typically, it is not appropriate, and in these cases the dictates of some constraint are appropriate instead; (3) non-consequentialist constraints on consequen- tialist evaluation do not have lexical priority, however; there- fore in a third group of cases consequentialist arguments can override the constraint.

Pluralism looks like common sense. In the context of rights, which are the fundamental “other” value I consider here, it is a way of saying: consequences matter, and rights matter, but neither is the whole story and neither is reducible to the other. Rights are then valued not because they are consequentially a good thing, but because it is in some sense and to some unspecified extent intrinsically worthwhile to protect them. Dworkin defended this view in Taking Rights Seriously:

This idea-that individual rights may lead to overall utility-may or may not be true, but it is irrelevant to the defence of rights as such, because when we say that someone has a right to speak his mind freely, in the relevant political sense, we mean that he is entitled to do so even if this would not be in the general interest.8

“This idea” is of course Mill’s. I have a right if I have some- thing which “society ought to defend me in the possession of,” and “if the objector goes on to ask, why it ought? I can give him no other reason than general utility.”9 Dworkin’s com- plaint is that Mill’s conception allows rights no independent status in the hierarchy of value and therefore no protection against the crude balance of utility. Dworkin’s conception, in contrast, provides a side-constraint which protects the individual bearer of rights against the crude balance of utility.

I emphasize that there are these rival conceptions of a right. The emphasis is necessary because some non-consequentialists, including Dworkin, disingenuously deny from the outset that consequentialists can have a concept of a right:

The constructive portions [of Taking Rights Seriously] emphasize an old idea that is also part of the liberal tradition, but that has no place in either

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legal positivism or utilitarianism. This is the old idea of individual human rights. Bentham called that idea “nonsense on stilts.”I0

I say that this is disingenuous because the claim that con- sequentialists cannot be defending rights begs the whole question. After Dworkin has defined rights as a claims-against- the-general-interest, consequentialist accounts of moral value do not stand convicted of a semantic howler. In Dworkin’s sense, without question, there are no rights under consequen- tialism. But this is not to say that consequentialists cannot account for rights, because it is not to say that they cannot even in principle discredit Dworkin’s theory and put another in its place.”

For Dworkin, at all events, a right is a device for defending us against the collectivist excesses of consequentialist calcu- lation. It provides a n aconsequential “trump” against such a calculation:

Individual rights are trumps held by individuals. Individuals have rights when, for some reason, a collective goal is not sufficient justification for denying them what they wish, as individuals, to have or do, or not a sufficient justification for imposing some loss or injury upon them.’*

Of course, Dworkin is right to charge that utilitarianism might, at least in theory, justify action against a n individual for social ends, allowing that social ends are among those utilitarians must take into consideration. The most straight- forward account of the utilitarian’s view is that, as appar- ently with Mill, a “right” ought to be violated if and only if utilities are thereby maximized. And this is what the idea of a political trump serves to deny: for Dworkin, the insti- tutional rules under which rights are recognized cannot be broken just because doing so maximizes utility. Otherwise, he thinks, the concept of a right becomes redundant. How- ever, Dworkin at the same time very clearly rejects the ab- solutist attitude to rights, because he accepts that “emergen- cy cases” provide (consequentialist) justifications for violat- ing rights.

There is a n obvious sense in which Mill and other con- sequentialists can give special weight to their “rights,” and this sense is worth defining so that it can be properly con- trasted with Dworkin’s. A strong conception of rights can be thought to have utility-value; that is, it can be important for reasons only of consequence to have widely recognized sum- mary rules for some kinds of social behavior which have not only a similar content to deontic rights but also a similar “inelasticity.” For example, there might be a number of consequentialist reasons, given a summary rule of fair trial,

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for taking a very guarded attitude to claims that in some case it is maximal to imprison someone in contravention of that rule. Perhaps the perception that contravening the rule is maximal depends on unwarranted optimism that the fact of the contravention will not become public; perhaps, if it is accepted that the contravention will become public, there is a n unwarranted belief that in assessing disutilities overall it is necessary only to assess the disutilities to the individ- ual(s) who will be directly victims of the contravention. For these and other reasons it may be said both that in doubtful cases some summary rule rather than its contravention must be given the benefit of the doubt, and that such a doubt will arise in a large number of cases: thus it is assumed that the maximal strategy, in the face of uncertainty, is one which will accept decisions based on a procedure which is highly fallible from an “ideal” point of view because any more direct approach to the utility of the individual case is likely to fail more often and/or more seriously in the long run.

The strategy differs from Dworkin’s, of course, in that it hangs on without qualification or apology to the claim that if-clearly, all things considered-some right-violation is max- imal, then no further ground is required for believing that the violation is justified. Dworkin’s reason for denying this is that his pluralism consists in the belief that rights- violations are both disutile and (also) deontically wrong: the consequentialist calculation fails to account for part of what it is that morally matters. He elucidates this idea by invok- ing the distinction between moral harm and bare harm:

We might distinguish . . . between what we might call the bare harm a person suffers through punishment whether that punishment is just or unjust-for example the suffering or frustration or pain or dissatisfaction of desires that he suffers just because he loses his liberty or is beaten or killed-and the further injury that he might be said to suffer whenever his punishment is unjust, just in virtue of that injustice.13

Dworkin stresses that any resentment someone feels because he (rightly or wrongly) considers some punishment unjust is part of the bare harm. The “moral harm” which carries the “further injury” is nothing to do with any feelings suffered (by the punished man or anyone else) which could possibly amount to a bad consequence in the “bare” sense.

Obviously a consequentialist must reject this out of hand, since Dworkin makes it so clear that the moral harm could not even in principle be explained as a n increment of bad consequence. The interesting question is, then, can Dworkin himself explain it, without backing into absolutism?

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Someone who believes in an “absolute” right (say, that one not be punished when known to be innocent) can decide that the contravening act is morally forbidden just by noticing that performing it involves a moral harm-and some alternative involves only bare harm. To him, the act of punishing the innocent man is, say, unjust, and unjust acts morally cannot be performed, consequences notwithstanding. Since the ab- solutist ranks the innocent man’s right not to be punished as lexically prior to utility considerations, his right has to be preserved in any case and only within that limitation can the consequences be addressed. Dworkin shows clearly, by his at- titude to “emergency cases,” that he is not ranking rights as lexically prior to utilities but is allowing the two to compete, where they do compete, in a weigh-off. Now, it is certainly true that he wants to put a very heavy extra weight in the rights pan,” and that only very ponderous utilities will exceed them

in importance. But, no matter how heavy the weighting is, it doesn’t amount to lexicality, because there is no such thing as approximate lexicality. Dworkin’s conception of a right re- quires a relation which is like lexicality in that it successfully represents the fundamental difference in the type of value rep- resented by moral harm and by bare harm, but like weight- ing in that it leaves intact the intelligibility of claiming that one has been added to the other.

This is impossible. On the one hand, Dworkin’s need to avoid the supposition that moral harm is just a type of bare harm forces him to define it in such a way that it has nothing to do with and cannot be comprehended by good consequence to any individual or individuals. On the other, it now appears that moral harm and bare harm must be commensurable if we are to make sense of the idea that (for a given course of action involving both) their sum is greater than or less than the sum of bare harm for some alternative.

It is the pluralism which causes the trouble. Suppose all good and bad (bare) consequences are counted in their dollar equivalent, and tha t some social good consequent upon hanging some innocent man equals $100. Suppose, further, that after due consideration of uncertainty, possible side- effects and so on, we assign the action a bare harm of $90. Dworkin now enters the picture and tells us not to forget the moral harm, which is 530. There are only two possibilities: either we know the exchange rate, or we do not. If we know the rate, we can convert $10 into its sterling equivalent. We will then know either that $90 plus 210 is greater than $100, or that it is not. The first case represents the situation in which Dworkin will not hang the innocent man jus t because

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of the bare advantages; the second represents the one in which he is forced to agree (insert your favorite dire default consequence: New York City will certainly be blown up by nuclear terrorists, etc.) that even considering the moral harm we ought to go ahead.

But of course “knowing the exchange rate” means denying the special feature of moral harm, that it is in no sense intelligible just as an extra amount of bare harm. As soon as we accept that 210 is worth $X, we let go of the claim that moral harm lies outside the grasp of consequentialism. But to hang on to that claim, as Dworkin so unequivocally does, is to accept that we have no exchange rate, no standard for commensuration, between sterling and dollars. In that case, the claim that there is 210 of moral harm “as well as” the $90 of bare harm actually tells us nothing, because it represents the insoluble equations

(1) lOOx > 80x (2) 20y > 0

(1) represents the option of ignoring the moral harm and going ahead because it’s consequentially maximal; (2) represents the absolutist position that the moral harm makes the act im- permissible regardless of the “bare” consequences. Both kinds of monist are in principle capable of making a decision. But the attempt to combine the two in a compromise pluralism re- sults in our inability to make a decision either way, because the plurality of the theory denies us any independent means of telling whether a bare harm combined with a moral harm is more or less important than a greater bare harm which involves no moral harm.

The obvious objection against any financial (or, generally, any numerical) analogy is that it is misleading to characterize Dworkin’s position on moral harm as a quantity of ill-effect if the whole point about moral harm is that it is never simply a quantifiable bad consequence. But acknowledging this will not alter the conclusion. First: the idea that moral harm is not a quantity of bad consequence is effectively served by the twin suppositions that bare harm is a quantity of bad consequence and that we have no standard for commensuration. Second: all numerical quantities in the example are dispensable without losing the conclusion, since it is equally true that a “pluralist decision procedure” fails to operate as a decision procedure even where the ranking of goods and harms is ordinal. All we need to say is that one course of action in- volves only a bare harm and that the alternative involves both a smaller bare harm and some moral harm; the conclusion,

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that there is in principle no way a pluralist theory can rank the two alternatives, still follows.

This difficulty is at work in Dworkin’s pluralist analysis of British Steel Corpn. v. Granada Television Ltd. British Steel took Granada to court in order to discover the identity of a n employee who had leaked confidential information. Granada countered that it had a right to protect confidential sources:

The Court of Appeal held that British Steel was not “in principle” entitled to the information, because the danger that it would suffer injustice for lack of that information was outweighed by the public interest in the free flow of information, which the court believed would be to some extent cut off if potential informers knew that their names might be revealed in litigation. That was not a mere cost-benefit analysis, because it weighed the interests of potential plaintiffs in the position of British Steel much higher than these interests would rank in such an analysis. It ranked these interests as interests in avoiding moral harm. Nevertheless it held that these interests, properly weighted, were outbalanced by the public interest in news.14

For the central reverse-conditional to be true, Dworkin must here be operating with a very narrow conception of what counts as a cost-benefit analysis. According to that concep- tion, there is some (unspecified) threshold of weighting ( t ) be- yond which the assessment is not really a straight assessment of costs and benefits. But why should this be so? Why should it not be our explanation that “the interests of potential plain- tiffs in the position of British Steel” were weighted because they were adjudged (not merely in this case, but as a rule) very important interests? Dworkin offers no explanation of why a sophisticated consequentialist analysis is illegitimate. Yet that analysis has at least one powerful advantage over his own, which is its structure as part of a comprehensible deci- sion-procedure. His analysis, in contrast, makes it impossible to understand how this weighting for moral harm was ever possible, given that the moral harm was not just one cost among other (bare) costs. On the one hand, it seems in- escapable that t is in some way the result of applying some arithmetical operation * to two considerations, ( f ) m and ( f ) b , where (f) is some function, m is the factor of moral harm and b is the factor of bare harm. On the other hand, precisely what we are told by the irreducibility of moral harm to bare harm is that no description could be given, even in principle, for * since if any arithmetical description could be given for * it would be possible to describe one in terms of the other and falsify the claim that moral harm is outside the grasp of con- sequentialism.

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111.

None of these arguments is peculiarly applicable to Dworkin’s theory of rights, or the concept of “moral harm.” Let me apply them to another case. In a discussion of personal obligation (that other great reef on which consequentialism allegedly founders), Charles Taylor says this:

It could be doubted whether giving comfort to the dying is the highest utility producing activity possible in contemporary Calcutta. But, from another point of view, the dying are in an extremity which makes calculation irrelevant.15

Taylor implies that he wants us to imagine circumstances in which (a) comforting the dying is not maximal, and (b) we nevertheless ought to comfort the dying. Of course, he could think this because he is an absolutist about comforting the dying, and his use of the word “irrelevant” suggests this. But it would be a desperately implausible position; and much else of what he says suggests, instead, pluralism. In order to make utilitarianism look morally crude, he must press the notion that comforting the dying is not maximal: i.e., is not what utilitarianism will recommend. But his use of the word “extremity” suggests that he is unable to accept this premise himself. The only way he has of persuading us to stick with the dying “regardless of utility” is by a covertly maximal ap- peal to the effect that comforting the dying is more im- portant than any other employment we can suggest. He does not provide a n explanation of the extremity of dying which shows why we should comfort the dying even though we could be doing more good elsewhere: on the contrary, he falls back on the question-begging assumption that because the extremity of dying is special, we could not be doing good elsewhere.

If it is true that comforting the dying is the best we can do-not so wild a guess at consequence-optimization as Taylor suggests-all well and good. But if in fact we could be doing more good elsewhere by ignoring the dying, then it might be wise to ask those who will suffer as a consequence of our sentimental attachment to the dying whether or not “the dying are in a n extremity which makes calculation irrele- vant.” Their answer will be that no extremity can properly have that effect, because to help or comfort the dying non- maximally is to do it at the expense of the greater suffering of someone else.

Dworkin provides another example of the difficulty Taylor is in. The status of minorities is often considered a stum- bling block for consequentialism:

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If the physically vulnerable members of the community-those who need police protection against personal violence-were only a small minority, it would seem plausible to say that they were entitled to that protection.16

The message is that “weighted” entitlements and not Millian pure-consequentialist ones would provide such a group with police protection. Is this correct-and, if it is, should we jump to the conclusion that this illustrates the superiority of plu- ralism over consequentialism?

Imagine that the maximal policy is not the one our intuitions favor. Dworkin will say that the consequentialist is forced to do something morally outrageous; and what he will do instead is “respect the right” of the minority-at the cost, ex hypothesi, of deviating from maximal resource al- location. But it is not clear that protecting the minority against the “crude” balance of utility is a n idea which has any currency outside examples in which Dworkin would him- self favor a strategy of maximization. Suppose that the mi- nority of cats living in Dog City cannot be afforded adequate protection, not because the protecting agency doesn’t care about the fate of cats but because a larger, equally deserving and equally threatened minority of chickens is in need of protection in another quarter of the city. It does not seem at all “plausible” that a minority is “entitled to this pro- tection” if it can only be provided by withholding it from some other section of the community which is equally entitled to it at least in the raw consequentialist sense of being equally in need of it.

So “rights” of this kind quickly lose their appeal as rights when they compete directly with and can be secured only at the expense of congruent “rights” held by others: if we really construct a plausible difficulty about aiding the minority, their entitlement really becomes doubtful. On the other hand, if we take a clash of interests any less direct than this, the interest of the minority will ips0 facto enjoy a special status: and in that case it is no longer clear why protecting the mi- nority with resources which are available to protect them could be thought incompatible with the maximization of gen- eral welfare.

Dworkin, like other pluralists, seems to be hanging on to the sentimental idea that “we will help these people, what- ever the cost.” But the cost (if we are going to count it as anything much of a cost) is cost to the welfare of other people. Dworkin appeals to our intuition that a minority which has rights cannot legitimately be bullied by a majority which has no coun- tervailing rights but only countervailing interests. The trouble with repeating this intuition, alongside the one that very grave

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consequences can override considerations of right, is that they form an inconsistent pair. The persuasive force of a qualitative contrast between interests and rights is entirely lost once its exponent admits that he is not a absolutist; but if he is not, and he separates interests from rights only by a weighting of com- mensurables, it follows that his only plausible strategy is to fall back on the pure-consequentialist account in which a right is an admittedly special type, but only a type, of interest.

IV. The incommensurability problem lies in wait for other the-

orists who are trying to get away from the less plausible aspects of consequentialism without accepting absolutism; and this suspicion is confirmed by problems in Scheffler’s The Rejection of Consequentialism.

According to Scheffler, the really intractable problem with consequentialism is to be found, partly concealed, in Williams’ objection to utilitarianism that impartial calculation leads to moral demands which destroy our personal integrity. (We have projects which mean enough to us that we ought not be expected to drop them just because the “unblinking accoun- tant’s eye of the strict ~ t i l i t a r ian”’~ determines that doing so is impartially optimal.) A weakness in Williams’ formulation is that it seems to apply, mutatis mutandis, to any theory ex- cept egoism, because egoism is the only theory generally in- capable of demanding that an agent sacrifice his projects in the face of external moral demands. What Williams needs to claim is that utilitarianism makes our projects subservient to external circumstance in a special way, and that this is what is objectionable from the standpoint of the integrated per- sonality. As Scheffler puts it:

[Tlhe objection . . . should be seen as arising not in response to utilitarian- ism’s insistence on the in-principle dispensability of the agent’s projects, but rather in response to the discrepancy between the way in which concerns and commitments are naturally generated from a person’s point of view quite independently of the weight of those concerns in an impersonal ranking of overall states of affairs, and the way in which utilitarianism requires the agent to treat the concerns generated from his point of view as altogether dependent for their moral significance on their weight in such a ranking.18

The true heart of the integrity objection is thus identified as the fact that utilitarianism

. . . requires the agent to allocate energy and attention to the projects and people he cares most about in strict proportion to the value from an impersonal standpoint of his doing so . . .I9

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It is this requirement of strict proportionality which causes the trouble, and Scheffler sees two possible ways out of it. The most obvious of these depends on what he calls “agent- centered restrictions.” An agent-centered restriction prevents agents from acting in certain ways, regardless of consequen- tial good. As a result, they are capable of putting agents into situations in which it is true (a) that the performance of some action will (uniquely) bring about the best state of affairs, yet also (b) that the agent may not perform it.20

This is absolutism, as Scheffler himself makes clear much later-in Chapter 4, which is devoted to a consideration of the arguments for agent-centered restrictions. Scheffler is un- happy with absolutism: and having already shown himself unhappy with the “strict proportionality requirement” of consequentialism he is thrown back on the other non-conse- quentialist alternative. This comes to be, in the end, his main project: the defense of a n independent rationale for a “hybrid” theory incorporating “agent-centered prerogatives.”

Surprisingly little is said about this rationale. What does emerge, in a very brief sketch,21 is the idea that a theory incorporating an agent-centered prerogative-and therefore not demanding that agents always act consequence-optimal- ly but at the same time allowing them to do so-has its own special way of taking account of “the independence of the personal point of view.” The consequentialist’s “maximiza- tion strategy” takes account of this point of view in one way; unfortunately, a feature of that strategy is

. . . its insistence that the moral significance of a personal point of view, with its accompanying commitments and concerns, is entirely exhausted by the weight that point of view cames in the impersonal calculus, even for the person who has that point of view.22

In contrast, the “hybrid” theory departs from the require- ment of strict proportionality and treats the personal point of view as morally independent.

Scheffler does not argue that the means by which his theory takes account of the personal point of view is in any way inherently superior to the maximization strategy: he just wants to say that it provides a rationale at least as good as the other and independent of i t [Tlhe prerogative is, at the very least, a structural feature whose incor- poration into a moral conception embodies a rational strategy for taking account of personal independence, given one construal of the importance of that aspect of persons.23

Supposing such a prerogative would do this, what would its

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structure have to be? Scheffler says a number of things which suggest he has in mind a pluralist solution. His “Outline of a New Theory” attempts a n account of precisely how an agent-centered prerogative would limit (and how it would not limit) personal responsibility for the world’s ills. Consequen- tialism does not limit such responsibility-or, at all events, even sophisticated consequentialism can only provide a ra- tionale which leaves intact the connection between justifying limits to that responsibility and judging the impartial good. Thus the consequentialism-independent rationale for the agent-centered prerogative. But if this rationale is genuinely consequence-independent, and yet is part of an overall pic- ture in which consequentialism is the “background” method for justification-in fact the method for justification in all cases except those in which the prerogative might operate- then it looks very much as if Scheffler’s project of defining such a prerogative faces the same problem as Dworkin’s weighted right. As Stephen Darwall pointed out in a review:

[Ilf one justifies an agent-centered prerogative independently of teleological considerations, but nests it within a more general consequentialism, jus- tified, presumably, with a teleological rationale, where does one look for a justification for fixing the limita of prerogative?Z‘

Here, once again, the issue is that there seems to be no hope of making the theory workable without being able at least in principle to define how the line is to be drawn around the non-teleological conception (in this case the preroga- tive)-and yet no hope of giving criteria for the position of that line without implicitly accepting what the theory is set up in a n attempt to deny. For the theory is set up to deny both that the impartially calculated best course of action may be irrelevant (because of agent-centered restrictions, i.e. absolutism), and that it is the sole relevant consideration (because of consequentialism). To avoid both positions Scheffler has to claim that there can be some definable threshold (call it t again) which permits some inactions consequentialism does not permit. (The reason for this permission will be some version of what James Fishkin calls the “cutoff for heroism”- because of which we can reject the consequentialist inference from the optimality of some act to the requirement that we perform it.) But, wherever Scheffler thinks t will fall in par- ticular cases, he is forced by the very structure of the project to admit that it will have to be defined as some joint operation on c, the morally independent value of good consequence, and p , the morally independent value of permitting agents to ig- nore this standard in deciding how much energy to devote to

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their own projects. Now, Scheffler does admit that there is a problem here-but he underestimates its seriousness:

[T]o speak of a moral theory as giving a certain amount of weight to some fact is to use a figure of speech, and one that is misleading to the extent that it suggests the possibility of precise measurement. It is simply not clear what standard one is supposed to use in comparing the “weights” given to some fact by different moral conceptions.25

Rather we should say: it seems clear that in principle there could not be a standard of this kind linking the disparate values of c and p , since any such standard would allow us to “convert” the value of p to a quantity of c-value and ren- der the theory consequentialist. But in that case there is no point in trying out all sorts of possible functions and opera- tions in an equation of the form

(f)c * ( f lP = t

because the theory itself tells us that whatever (f) might be the * in any such equation is meaningless. In fact the theory tells us, incompatibly, both to assume that there is no stan- dard for co-measuring c and p , and (in order to decide cases where there is an apparent conflict between our projects and some impartially generated imperative) to assign some standard for co-measuring them.

V. It might be thought, perhaps, that my arguments against

Dworkin, Taylor, and Scheffler rest on a false assumption about rational decision-making. The assumption, common among nineteenth-century thinkers, is that decision-making is irrational unless rule-governed; the retort is (for example) that even in the best scientific practice decision-making regularly “fails” this test, and, further, that it is either an impossibly stringent test, or even the wrong kind of test, to apply to much of our moral decision-making. So moral theories like those of Dworkin, Taylor, and Scheffler, which do not provide us with a unified rule or rule-system on which to base our decisions, cannot be condemned for not doing so.

My quarrel is only with the final inference. It is true that we may make decisions without being able to justify them in terms of their application of any general rule, and that in do- ing so we may be acting rationally. Scheffler’s own most recent work contains a discussion of cases in which, even when a rule does seem to apply to the assessment of a type of action, it isn’t reasonable to expect that one will actually bring this rule to mind in deciding whether to perform a given action.

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Imagine that a public official is asked by an old friend to intercede on behalf of the friend’s wayward brother in an ongoing legal proceeding. The official’s immediate reaction is that it would be wrong for her to accede to the request, and she turns it down without further ado.26

You might complain that the phrase “without further ado” is a way of rejecting one (rule-considering) psychological story and putting none in its place. However, I shall accept that we can put in its place a story which shows that the official is both being reasonable and doing so without considering a rule. That isn’t the problem; the problem is the implication that this has anything to do with what is and isn’t accept- able in normative theory.

The point about practical reasoning is fashionable and widespread; the implication about normative theory seems to be almost as common. Martha Nussbaum, for example, notes the “distaste for . . . plurality and incommensurability” of nineteenth-century thinkers such as Bentham and Sidgwick, but in her own distaste she neglects to explain how the very real difficulty of applying their kind of moral thinking in a flexible and humane manner detracts from the difficulty of making sense of what we are doing when we do abandon it.27 Bernard Williams dismisses as “utterly baseless” the “assumption about rationality . . . that . . . two considera- tions cannot be rationally weighed against each other unless there is a common consideration in terms of which they can be compared,” but he does not explain whether this is a plainly true claim about how we judge the manner in which we have acted under difficult circumstances, or a profoundly odd (and unargued) claim about how a justificatory moral theory works.28 In his book on John Stuart Mill, John Skorupski quotes this passage from Williams, ruefully accepts that one cannot absolve Mill from this “shallow rational- ism,” and says that “this weakness in Mill’s thinking goes deep and causes much damage.” But, revealingly, his argu- ment that it is a weakness amounts only to the observation that as a matter of fact our canons of practical moral rea- soning are plural and incomplete.29 This is not the issue; the issue is whether it makes sense to suppose that our philo- sophical analysis or justification of these canons can possi- bly be complete, or even adequate, if it is plural.30

As I tried to indicate in the discussion of specific cases arising out of Dworkin’s and Taylor’s views, I think the core issue here is one of honesty about what our “theories” are actually able to do for us. In his latest book, Nagel writes:

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To trust our intuitions, particularly those that tell us something is wrong even though we don’t know exactly what would be right, we need only believe that our moral understanding extends farther than our capacity to spell out the principles which underlie it.31

I’m sure we should trust our intuitions in this way. However, to describe a case in which “our moral understanding extends further than our capacity to spell out the principles which underlie it” is precisely to describe a case in which intuition, or common sense, or something, has found theory at a loss and has taken over in its stead. General normative theories, such as consequentialism, actually give us a n account-ade- quate or not-of the basis on which moral decisions may be justified. The pluralist theories discussed here are disingenu- ous just because they claim to be justificatory theories, and yet they in fact leave us completely at a loss with respect to large sets of questions which (out of the other side of their mouths) they purport to cover as “hard cases.” Pluralists do not admit that they are Rossian intuitionists, with nothing philosophical to say about why A is to be deemed preferable to B that might be added to the “SO it seems” of intuition or common sense; but nor do they grasp the other horn of their dilemma, and espouse a radical skepticism about the possibil- ity of a philosophical justification of moral decisions in broad ranges of cases. Instead, as we have seen, they waffle. Scheffler, for example, says in his most recent book that

[Clonsiderations about the agent’s interests are among the considerations that help determine what the agent morally ought to do . . . and overall moral verdicts often, although not always, coincide with assessments of personal well-being . . . conduct that promotes the agent’s well-being [is] often fully legitimate . . .3*

We don’t need philosophy to tell us this. What we need from pluralist moral philosophy (if the monistic answers are no good) is an account of the intellectual means by which the decisions in these sometimes-but-not-always cases might in principle be justified. In this connection, Scheffler says that moral theories are “competing proposals about the types of features that are morally salient.” This is a fine way to describe what happens when theories conflict; but our favorite among those theories is exposed as philosophically empty if it can’t say what is salient to our deciding the hard case by choosing A and not B.

Absolutism and pure consequentialism are unpleasant alternatives for various reasons, both theoretical and prac- tical. This is one reason, among others, why the “middle ground” of pluralism is so warmly commended to us by much

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of contemporary ethical theory. Unfortunately it seems that, for all our wishing, the middle ground does not exist. When we make decisions which are not based on, or retroactively justifiable by, a general. normative rule of the kind which pluralism renounces, we may indeed be acting reasonably. But this is not because our activity is illuminated by a pluralist moral theory; it is because we are groping about, more or less successfully, in an area where moral theory has shed no light.33

NOTES

1 Rawls ranks the Priority of Liberty as lexically prior to the Difference Principle, and comments:

This is an order which requires us to satisfy the first principle in the ordering before we can move on to the second, and the second before we consider the third and so on. A principle does not come into play until those previous to it are either fully met or do not apply . . . those earlier in the ordering have an absolute weight, so to speak, with respect to later ones, and hold without exception.

A Theory of Justice (Harvard University Press, 1971), 43. 2 This is what distinguishes it from the kind of lexical consequentialism

in which everything is valued consequentially but some consequential goods (say, constitutionally protected rights) are ranked lexically prior to others (say, some class of trivial enjoyments).

3 Thomas Nagel, “War and Massacre,” in Moral Questions (Cambridge University Press, 1979), 58.

4 Alan Gewirth, “Are There Absolute Rights?,” Philosophical Quarterly 31 (1981); c.f. J. Levinson’s reply, and a response by Gewirth, in vol. 32 (1982) of the same journal.

5 Utilitarianism, Chapter 1, paragraph 4. 8 A Theory of Justice, 30. 7 “The Diversity of Goods,” in Utilitarianism and Beyond, ed. Amyarta

8 Taking Rights Seriously, 2d. ed. (London: Duckworth, 1978), 271. 9 Utilitarianism, Chapter V, paragraph 25. 10 Taking Rights Seriously, vii. 11 In his reply to critics Dworkin admits this. 12 Taking Rights Seriously, xi 13 “Principle, Policy, Procedure,” in Crime, Proof and Punishment: Essays

14 “Principle, Policy, Procedure,” 219. My emphasis. 1 5 Taylor, “The Diversity of Goods,” 134. 18 Taking Rights Seriously, 194-195. 17 Bernard Williams, “A Critique of Utilitarianism,” in J. J. C. Smart and

Bernard Williams, Utilitarianism: For and Against (Cambridge University Press, 1973), 113.

Samuel Scheffler, Rejections of Consequentialism (Oxford University Press, 1982).

19 Ibid. 20 Ibid., 9. 21 Ibid., 57-67. 22 Ibid., 61. 23 Ibid., 67.

Sen and Bernard Williams (Cambridge University Press, 1982).

in Memory of Sir Rupert Cross (London: Butterworth, 1981), 201.

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24 S . L. Darwall, Journal of Philosophy (April 1984), 220-226. 25 Scheffler, op. cit., 63. 26 Human Morality (Oxford University Press, 1992). See, for instance, the

z7 The Fragility of Goodness (Cambridge University Press, 1986), 112. 28 Ethics and the Limits of Philosophy (Cambridge University Press,

29 John Skorupski, John Stuart Mill (London: Routledge, 1989), 46-47. 30 For the claim about practical reasoning see also Michael Stocker

(Plural and Conflicting Values [Oxford: Clarendon Press, 1990]), and S. L. Hurley (Natural Reasons [Oxford University Press, 19901, especially Chapter 13). Stocker argues that, from the existence of practical ethical conflict, we are forced to infer that values are irreducibly plural. Hurley defends the view that decisions are not irrational merely in virtue of the fact that they involve intransitivities.

31 Thomas Nagel, Equality and Partiality (Oxford University Press, 1991), 7. 32 Human Morality, 113. 33 I have tried to argue that one of the most superficially attractive of

the anti-consequentialist cities is probably a bad place to live. When I first came to this conclusion it seemed to show that we have poorer reasons than most people think we have for packing up and moving out of consequen- tialism. Now, instead, I think it shows either that we have poorer reasons for moving out of consequentialism or that we have one more reason for becoming exiles from the entire province of general normative theory. If we have only a few types of candidate for a general normative theory, and one type is shown to be unworkable, this forces us to take the alternatives more seriously only on the assumption that ethics should proceed by attempting to establish a general normative theory. I now very much doubt that it should; but that is another story.

four cases described on pp. 31-32.

1985), 17.

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