ROBERT SIMON

T H E T R O U B L E W I T H C A T E G O R I A L C O N S I S T E N C Y *

(Received 15 August, 1973)

The formal principle of equality states that relevantly similar cases should be treated similarly. Unfortunately, this principle by itself is too weak to rule out 'elitist' or discriminatory basic moral principles. Advocates of such discriminatory principles deny that all humans are sufficiently similar to justify their being counted as equals from the moral point of view. The Nazi and the white supremacist are paradigm advocates of discriminatory or elitist principles.

In a series of recent papers, Alan Gewirth has defended an additional tool of moral argument, the Principle of Categorial Consistency, in an attempt to show that adherence to discriminatory basic moral principles is inconsistent. 1 In what follows, I argue that in spite of its great ingenuity, his attempt fails. Unfortunately, the Principle of Categorial Consistency does not yield the desired egalitarian consequences.

I. THE A R G U M E N T FROM C A T E G O R I A L CONSISTENCY

Professor Gewirth maintains that in addition to satisfying the test of formal equality or consistency, moral judgments must also satisfy a material requirement as well - avoidance of the arbitrary. Thus, if the elitist who claims his discrimination is justified is to support his claim, he must show that the difference between him and his victims which he cites as the basis of his discrimination has not been selected arbitrarily. But, according to Gewirth,

any agent's procedure in making his fights claim is arbitrary so long as he is permitted to pick and choose aecording to his own predilietions from among the varying cri- teria.., of relevant similarities which may enter into his rights claim. The only way to halt this arbitrariness and hence to establish his claim on a rationally justified basis is to restrict its content to what is necessarily and universally connected with its subject matter. (E J, p. 336, italics my own.)

Philosophical Studies 27 (1975) 271-277. All Rights Reserved Copyright �9 1975 by D. Reidel Publishing Company, Dordrecht-Holland

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Now, so long as actions are subject to moral evaluation, Gewirth claims that they necessarily are voluntary and purposeful. Since it is the function of moral evaluation to guide choice, it would have no point where the power of choosing was absent. Voluntariness and purposefulness, then, are the categorial features of action; they are defining of that category in so far as it is subject to moral judgment. (E J, pp. 332-333.)

It follows, so the argument goes, that the elitist is inconsistent. For if he is to justify his discrimination, he must show it is non-arbitrary. To show it is non-arbitrary, he must derive it from what is universally and necessarily connected with moral evaluation. But only the categorial features are so connected. Consequently, since all agents possess the categorial features, the elitist is left with no basis for distinguishing between himself and his victims although, in claiming his discrimination is justified, he implies there is such a basis. Such inconsistency can be avoided only by adherence to the Principle of Categorial Consistency (PCC) which enjoins us to assign the same weight to possession of the categorial features, regardless of whom the possessor happens to be.

A non-arbitrary distinction between agents, then, would be one that is defensible by appeal to the PCC. For example, assignment of special powers to elected representatives in a democratic state would presumably be justified if such an arrangement were (or would be) consented to by the citizens and in turn promoted the freedom and welfare of the popula- tion under the state's control. (E J, pp. 340-341.) On the other hand, the institution of racial segregation normally would not be justifiable by appeal to the PCC since some agents, the members of the segregated group, would not consent to it and would have their freedom restricted and their purposes frustrated besides. In the first case, the distinction is necessary to count equals as equals but in the second case, it is not.

I I . THE C R I T I Q U E OF C A T E G O R I A L C O N S I S T E N C Y

According to the categorial criterion of relevance, only possession of the categorial features is relevant to the justification of basic rights claims. Professor Gewirth argues for this criterion in two distinct ways. First, he argues in an ad hominem fashion that elitists who propose alternate criteria are thereby committed to the categorial criterion. Second, he argues that the non-arbitrariness of the categorial criterion follows from

THE T R O U B L E W I T H C A T E G O R I A L C O N S I S T E N C Y 273

the necessary and universal connection of the categorial features with action. In what follows, I criticize each argument in turn.

Let us turn our attention, following a suggestion of Gewirth's, from the content of the elitist's discriminatory principle to the decision pro- cedure by which he applies it. Suppose we ask why his principle rather than those of his victims should govern his interaction with them. He cannot appeal to the difference between him and his victims which his own principle embodies, since it is his very right to act on that principle that is in question. (CCC, pp. 290-291.) 2 The point here is that in claiming (1) below, the elitist has committed himself to (2).

(1) I have the right to act as my first order moral principles enjoin.

(2) I have the right qua agent to decide on which first order principles I will act.

(2), in turn, entails (3) by application of universalizability.

(3) Every agent has the right to decide upon which first order principles they will act.

Given (3), Gewirth accuses the elitist of inconsistency since the elitist does not extend to his victims the very right he is logically bound to concede to all agents.

N. Fotion has challenged the step from (1) to (2) by pointing out that the elitist may be claiming to act as superior agent rather than as mere agent, z Gewirth's reply is that Fotion's superior agent has begged the question in assuming the right to decide upon which criteria of superior agency he will act. For if he claims this right for himself qua agent, he must cede it to all other agents as well. That is, the elitist in holding (2') below

(2') I have a right qua superior agent to decide upon which first order principles I will act.

is commited to (3').

(3') I, as agent, have the right to decide upon which criterion of superior agency I will act.

Hence, Fotion's superior agent is driven back to the categorial level. (CCC)

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But surely it is open to the alleged superior agent to argue that (2') commits him not to (3') but to (4') instead.

(4') I, as a special sort of superior agent, have the fight to decide on which criterion of superior agency I will act.

At each stage of the ladder to which he is pushed, the elitist can avoid acknowledging that he is acting qua agent by introducing a new distinc- tion between the purported elite and others. If there is an escape from such a regress, I fear that we have not yet been shown where to find it. ~ This is not to deny that as a matter of fact, the elitist may have trouble formulating discriminatory meta-critefia or applying them con- sistently. But, for all we have been shown, these difficulties need not be insurmountable in principle or, for that matter, any stronger than those raised by use of the universalizability principle. Thus, we have not been shown why the elitist must admit that he is operating at the categorial level and so the categofial criterion of relevance remains unjustified.

At this point, it may be objected that the distinctions drawn by the elitist in order to generate the regress discussed above will seem in- creasingly arbitrary and ad hoc. After all, one of Gewirth's goals is to convict the elitist of arbitrariness. So why not appeal directly to the requirement of avoidance of the arbitrary?

A second Gewirthian argument purports to do just that. Remember, according to Gewirth, discriminatory basic principles are arbitrary be- cause they cite as the basis for discrimination features which are not necessarily and universally connected with action. However, if on the other hand,

the agent's own justificatory reason for his action is taken as decisively answering the question of relevance, then this admits all the relativities and variables mentioned earlier. The whole point of a rational position, however, is to subject men's choices to rational evaluation; hence those choices cannot be themselves made the independent variables for determining such evaluation. (E J, 13. 337.)

The point here seems to be that adoption of the categofial relevance criterion is a presupposition of the possibility of rational moral evalua- tion. Either we adopt it, or any individual's preferences are as good as any other's.

But isn't adoption of the categorial criterion also based on a choice and so on individual preference as well? Gewirth's answer is that in so

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far as we must acknowledge the relevance of the categorial teatures but need not acknowledge the relevance of any others, they and they alone have a special status.

Action... is the necessary and universal subject matter of moral.., judgments since these all refer directly or indirectly to ways in which people act. Hence, there can be no question that the categorial features are relevant to morality .... The case is otherwise, however, with more specific features.., since at least some practical judg- ments can dispense with them. (E J, p. 337.)

What is invariable, universal and necessary cannot be arbitrary. What is variable, contingent and dependent upon particular preferences of particular agents is arbitrary. Therefore, only the categorial criterion is rationally grounded. Discriminatory criteria are justifiable only when derivable from it.

I believe that this argument constitutes the heart of Gewirth's position. But unfortunately, it too has its problems.

According to Professor Gewirth, only what is universally and neces- sarily connected with its subject matter is ultimately relevant to evalua- tion of that Subject matter. Consider the application of this principle in some other area, say aesthetics. Suppose, for example, we had an ac- ceptable account of what it is to be a work of art. According to this account, features X and Y are the necessary and universal characteristics of such works. Now, since all works of art would possess X and Y, those categorial features themselves would be inadequate for distinguishing between good and bad works of art. For that purpose, some other feature Z, or at least the difference in degree to which art objects exemplify X and Y, would be needed. I f we were to restrict ourselves to X and Y alone, our aesthetic evaluations would be depressingly uniform.

But if Gewirth's principle of non-arbitrariness seems unduly restricted in aesthetics, why not in ethics as well? Just as we might distinguish superior from inferior works of art according to the degree to which they exemplify the categorial features or additional non-categorial ones, so too might we distinguish superior from inferior agents on a similar basis.

At this point, one might object as follows. Since it is simply in virtue of wanting to freely pursue one's purposes that one can justifiably claim the right to act, the notion of a superior agent has no place to gain a foothold. For example,

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If a person of superior intelligence had no purposes, he would make no claim to have any right to act. It is hence by virtue of being a prospective agent who wants to fulfill his purposes that the person of superior intelligence makes this rights claim. (E J, p. 338.)

But how can Gewirth establish that it is "by virtue of being a pro- spective agent" that the rights claim is made without falling into viscious

circularity. He cannot claim that only the features of agency are cate- gorically connected with action for it is just the significance of that claim

which the aesthetics example calls into question. Perhaps, on another interpretation, Gewirth's suggestion here is that the elitist himself is committed to framing his rights claim in terms of the categorial features. But this is simply to retreat to the ad hominem argument discussed earlier. As we have already seen that argument is successful only if supplemented

by a criterion of non-arbitrariness. Consequently, it cannot be appealed to in support of such a criterion without begging the very question at issue. 5

I f these points are sound, the claim that only what is universally and necessarily connected with a subject matter is relevant to its evaluation

has not yet been adequately supported. Indeed, when applied In such areas as aesthetics, such a claim seems positively absurd. Moreover, it appears that the significance ascribed to the categorial features can only be justified by appeal to Gewirth's earlier argument. But as the earlier argument is acceptable only if we are justified in ascribing unique status to the categorial features, we seem to be caught in a viscious circle with

no escape in sight. As matters presently stand, then, the categorial criterion of relevance

is itself open to the charge of arbitrariness. For all we have been shown, we cannot rule out discriminatory basic principles by appeal to categorical

consistency.

Hamilton College NOTES

* I am grateful to The American Council of Learned Societies and to Hamilton College for their support of my work. I am also indebted to Norman Bowie, David Braybrooke and Elizabeth Ring for their helpful comments on an earlier draft. 1 The relevant papers by Gewirth are 'Categorial Consistency in Ethics', The Philo- sophical Quarterly 17, No. 69 (1969), 288-299; 'Some Comments on Categorial Con- sistency', The Philosophical Quarterly 20 No. 81 (1970), 380-384; and 'The Justification

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of Egalitarian Justice', The American Philosophical Quarterly 18, No. 4 (1971), 331- 341. These articles will be referred to in the text as CCE, CCC and EJ respectively. 2 A similar argument has been defended recently by John Wilson in 'Why Should Other People be Treated as Equals?', Revue lnternationale de Philosophie, No. 97 (1971), 281ff. z N. Fotion, 'Gewirth and Categorial Consistency', The Philosophical Quarterly 18, No. 72 (1967), 262-264. 4 In CCE (p. 291), Gewirth maintains that no matter what level of generality the elitist is pushed to, he must claim he is acting qua agent on the level immediately above. It is exactly this claim that seems to me to be mistaken. 5 Perhaps all that Gewirth would claim is that the alleged superior agent would still prescribe that his rights claim be honored even if he were just a mere agent. Well perhaps so - unless he is so committed to his elitism that he would still support it even when against his interest to do so. As categorical consistency is supposed to go beyond universalizability in allowing us to deal with such 'fanatics', this can hardly be what Gewirth has in mind.