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Responses to Darwall, Watson, Arneson, and Helmreich

2023; Wiley; Volume: 106; Issue: 2 Linguagem: Inglês

10.1111/phpr.12972

1933-1592

Margaret Gilbert,

Free Will and Agency

It is an honor and a privilege to have received the engaged comments of these distinguished philosophers on Rights and Demands.1 I thank them for the time and thought they have put into them. Each commentator makes points I have not been able to address in the space available, and many of the points I do discuss deserve a longer treatment. I hope that, even so, these responsive notes will help further to clarify and defend the ideas expressed in the book. An important theme in Darwall's discussion is this: in what capacity or capacities may one person have a demand-right against another?2 If the joint commitment conjecture is correct, I possess any such demand-right of mine qua party to a given joint commitment, not qua the particular person that I am. In Darwall's terms, then, the standing or authority to demand an action is always a kind of representative authority, as opposed to individual authority. It is worth pointing out that if the joint commitment conjecture is correct, then absent some relevant joint commitment, I am immune from the authoritative demands of others, as they are from my demands. To put it another way, in a “state of nature” with respect to joint commitments, I may lack an important kind of authority, but I possess an important kind of freedom—freedom precisely from such authority.3 Is it a problem for the joint commitment conjecture that it has these consequences? I do not see that it is. Note that it does not conflict with the idea that, for instance, a sufficiently strong interest of a person may suffice to ground a moral duty in others to act in ways that respect that interest, or with the wish to say that in such circumstances the person whose interest is of this kind has a right in a related sense to the fulfillment of the relevant duty. Though I decry its ambiguity, I have no desire to impose a single usage on the language of rights—or more specifically, the language of “claims” or “claim-rights”—even if that were possible. By writing of “demand-rights” I hope to keep the discussion on a particular track. I am not wedded to the joint commitment conjecture with respect to demand-rights. It is, after all, a conjecture. However, given the considerations I adduce, I take it to have merit, and, in and of itself, the idea that one can only accrue a demand-right qua party to a joint commitment appears to be unexceptionable. Darwall contests this idea, as I discuss shortly. In the second chapter, when presenting a working account of the moral realm, I characterize moral requirements as, at a minimum, giving one sufficient reason to conform to them. By this I mean that all else being equal, one ought, in a generic sense, to conform to them.4 Darwall suggests that the “all else being equal” clause allows that moral requirements give us “very little reason.” The qualifier “very little” makes it sound as if I am here concerned with the weight of reasons, but the notion of sufficient reason that I employ does not relate specifically to weight—or to reasons—at all. Further, I was not attempting a full characterization of moral requirements at this point. Nor do I pursue one elsewhere in the book, though I do say more about them. With respect to normativity my aim in the second chapter is to do two things: to distinguish the legal realm, conceived of as comprising systems of rules with no normative impact, from the moral realm, conceived of as comprising a set of inherently normative rules, and to argue that the moral realm is not the only normative realm. To make the latter point, I focused on the case of a standing personal decision. That, I argued, gives the decision-maker sufficient reason (in my sense) to conform to it. Darwall expresses doubt on this point. Yet reactions that people may have when realizing they have just contravened a decision suggest there is a sense in which one ought to conform to a standing decision, all else being equal.5 As I understand it, this is a pro tanto, exclusionary “ought” that excludes, in particular, the inclinations and desires of the decision-maker.6 One might then say that a decision is a norm or—perhaps better—institutes a norm for the agent (as opposed to falling under various pre-existing norms such as those of coherence and consistency with other decisions). In the absence of a change of mind, the norm applies. At the end of the day, the normativity of personal decisions is not an issue that must be settled for the argument of the book to proceed. My aim is to find at least one ground for a demand-right of one person against another.7 Insofar as personal decisions ground demand-rights, they are demand-rights against the self, albeit the self in a particular guise.8 Why, then, refer to personal decisions? When I began to write about the process and product of joint commitment as I understood these, I felt that a good way to explain them to others was to compare—and contrast—them with something relatively familiar: the process and product of a personal decision. This was on the assumption that the latter process changed the normative landscape in the way just described. Suppose, as I believe, that normatively speaking joint commitments are in many ways akin to the personal commitments I take to be engendered by personal decisions. There is, still, a big difference between these cases. For present purposes what is key is that individuals committed through a joint commitment are not in a position unilaterally to rescind the joint commitment. A joint commitment is not a combination of personal commitments, such that each of the people in question hold sway over their part of it. It is a commitment of them all as one. In the case of joint commitment, then, the wide-scope “ought” to which Darwall alludes—an “ought” either to rescind my personal decision or to act on it, which does not allow one to infer “I ought to act on it” from “I haven't rescinded it”—appears to be irrelevant to the deliberations of a given party.9 Darwall says, congenially, “I agree that joint commitments create new rights and obligations.” He goes on to say that he does not see how the created obligations can come into existence “without non-created second-personal authorities being presupposed by the parties in making the joint commitments.” I am not sure why he wants to speak of non-created authorities rather than capacities here. In order to participate in the creation of a joint commitment one needs already to have the capacity to express one's personal readiness to be jointly committed with the relevant others, in conditions of common knowledge. It is not clear that one needs any particular prior standing in the sense of authority with respect to those others. In particular, it does not seem that one needs the standing to make at least some demands of them. Though I take there to be many cases of joint commitment formation in which the parties directly express their readiness for joint commitment to one another—as when one person asks another to dance, and the latter accepts—I take there to be a spectrum of cases in which a joint commitment can be established. Among other things, the parties to a given joint commitment may not be known to one another as individuals, or even known of as individuals. They may refer to one another under a general description such as “those now in the town square” or “those who reside in this land.” I take it that it may become what I refer to as population common knowledge in the population of those in the square or those who reside in this land that they have openly mutually expressed their readiness to be jointly committed in some way with the others, so described.10 It seems from such examples that the conditions under which mutual expressions of readiness have the necessary kind of directionality are not very stringent.11 Darwall offers an example—adapted from one of mine—intended to show that “expressions between the parties second-personally” are necessary, where he means “expressions to one another.” Suppose that Joan expresses to Ian her readiness to dance the next dance with Phil, and—in a separate encounter—Phil does likewise. Ian then tells each one of the others’ expressions of readiness. That, Darwall suggests, does not suffice for the establishment of an obligating joint commitment between them. More specifically, it does not suffice to establish a joint commitment to endorse as a body the plan that they will dance the next dance together. Supposing that this is so, it seems that a particular kind of addition to the story—one not involving direct personal interaction between Joan and Phil—could suffice to establish this joint commitment, as the parties’ subsequent behavior may show. Perhaps Joan goes so far as to say, or clearly imply, that “she wants Ian to let Phil know she is ready to dance with him if he is ready to dance with her.” Ian, a trusted friend of both, says he will relay the news, and does so. Phil responds that he will be only too happy to dance with Joan and wants Joan to know this. Ian promises to tell Joan of Phil's reaction, which he does. Suppose that, against some such background, Phil approaches Joan as she stands at the corner of the dance floor. He may well gesture to the dance floor with a smile, and say, with a clear expectation of an affirmative answer, “Shall we?” after which Joan is likely to respond in a manner suggesting his expectation is on target. This suggests that something like the sequence of events I've sketched suffices to establish the joint commitment in question. Were it not understood to have been established, Phil is likely to speak more tentatively, and less likely to treat a refusal as a denial of something to which he has a demand-right. All that said, Darwall is right to suppose that even if I were to grant that expressions of readiness made directly to one another were required for joint commitment, I would not think that presupposed any antecedent demand-rights against one another in the parties. Once again, it seems that only the relevant capacities are needed. Continuing to pursue the idea of an individual or non-representative standing to demand an action, Darwall adverts to an example he uses elsewhere: the case of A's stepping on B's foot.12 He and I agree that A is morally required not to step on B's foot absent special circumstances, which circumstances would include an agreement on A and B's part that A may, after all, step on B's foot. From the existence of this moral requirement, however, it follows at most that people generally have the standing to demand that A desist from stepping on B's foot.13 After some discussion, Darwall arrives at the following point: B has the non-representative standing to demand that A not step on B's foot, because it is B's foot.14 Now, B surely has a (non-representative) right in some sense that A stay off B's foot, absent special circumstances. For instance, B has a strong interest in making all decisions as to the treatment of his own body, including his foot. This interest may suffice to ground a moral duty in A to stay off B's foot absent B's permission to do otherwise. The same goes for a strong interest B has in avoiding pain to himself, whether by having his foot stepped on or by some other means. In either case, given at least one interest theory of rights, B has a right to A's so staying off his foot. That B has a right in some sense to A's staying off, however, is not at issue. What, though, of Darwall's claim that B has a (non-representative) demand-right to A's staying off B's foot, by reason of the fact that the foot is B's foot? Consider what it is for a foot to be my foot. In one sense it is my foot insofar as it is part of my body, or, if you prefer, part of me. It is (I shall assume) one of the two feet that I have the capacity to move at will, and so on. It is unclear that or how either of these facts ground any demand-right in me. To be sure, no one can credibly say to me “It's none of your business if I step on your foot!” That, however, does not mean that its being my foot, and that alone, gives me the standing to demand of others that they don't step on it. Surely something can be my business, in the sense that it very closely concerns me, or concerns me more than anybody else, without that's sufficing to give me any authority over anyone. It may be proposed that my foot is mine in the sense that a certain watch is my watch. If this is my watch, as we normally understand what that is, then it is plausible to assume that I have the standing to demand that no one else uses it without my consent. That standing, or right, seems to be a central part of what we think of as a right of property. That standing, however, needs to be explained. In the case of my watch, one might reasonably suppose that this standing comes either from an informal agreement or agreement-like process to which I am a party, or that it is accorded me within a legal system that exists in my society in such a way that, by virtue of that existence, I have in actuality those demand-rights accorded to me by the law. It may well be that that is the case only when the system's existence is a matter of the joint commitment of members of the relevant population.15 The watch analogy, then, is of doubtful value with respect to the claim that my foot's being mine gives me the non-representative standing to demand that you do not step on it. Watson disputes my joint commitment conjecture, being unpersuaded that demand-rights arise only from joint commitments. Further, he questions whether joint commitments always create demand-rights. I turn first to his discussion on the latter front, which focuses on a particular type of promise. Do demand-rights and their correlative directed obligations always ensue from a joint commitment? In arguing that they do not Watson focuses on the case I label MALEVOLENCE: Cam promises Donna to kill Evan in order to gratify Donna's unreasonable hatred of Evan.16 My understanding is that in such cases, as in other cases of promising, people understand that, on the basis of the promise, the promisee has the standing to demand performance by the promisor. Further, for Donna to have the standing to demand that Cam kill Evan is for Cam to be obligated to Donna to do so—and vice versa. In other words, one and the same relation between Cam and Donna is at issue. When describing this case, I had not yet offered a joint commitment account of promising, or said anything about joint commitment itself, nor did I say that Cam has reason to fulfil his obligation to Donna. However, given the joint commitment account of promising that I later propose, Cam will have reason to act as promised. Indeed, he will have sufficient reason, in my sense, to do it. That is, all equal, he ought to do it.17 In this case, I take it, all is not equal: moral considerations win out with respect to what he ought to do all things considered. Watson says that this depiction of the situation makes no sense to him. He suggests, first, that Cam had no right to make his promise to Donna nor she to accept (or request) it. Outside the law, what is it to have or lack a right to make a particular promise? It could be that morality forbids one from making such a promise: that it would be morally wrong to do so. I take this not to entail that such a promise cannot be made. If one can and does make one, then, given my joint commitment account of promising, the normative consequences just noted follow. Now, the rules of a legal system can determine that an unconscionable agreement is null and void legally speaking. I suppose that, analogously, morality can determine that, morally speaking, an unconscionable agreement is as if it had never been. Perhaps this is Watson's thought. Suppose it is true. An unconscionable agreement could still be an agreement and obligate the parties one to another in a non-moral way. This is what I take to be the case. Morality cannot, as it were, delete an agreement from the world, only from its own approval. Given a heinous promise such as Cam's to Donna, Watson comments that for the promisee to say, “I demand that you phi, but you'd be wrong, all things considered, to do so,” is performatively self-defeating. That may well be correct, but it prompts the following thought. Donna might put things differently. She might say, “I demand that you kill Evan, even though morally speaking, and so all things considered, you should not!” She is here demanding of Evan, in effect, that he ignore morality, and accord to Donna what she has the standing to demand by virtue of their joint commitment. If he is sufficiently besotted, he may do this, and Donna will get what she wants. Watson allows that even such heinous promises can have a variety of interpersonal upshots. For instance, Cam is answerable to Donna. It makes sense for her to (as I might put it) rebuke him for failing to fulfill his promise. None of these upshots, he claims, entails that Cam “has an obligation to Donna to kill Evan, or any reason to do so.” This may be so, given Watson's understanding of what it is to have an obligation to someone. There have been many different proposals on that score and disputes on the matter continue.18 In order to fix ideas, and following some existing ones, I stipulate in Rights and Demands that for A to have an obligation to B to do something is for B to have the standing to demand that A do it. That is, these relations are equivalent. I take it that, further, outside the institutional context, to have such an obligation is to have the standing to rebuke a failure to fulfil the obligation. Given my understanding of what it is to have an obligation to someone, then, and allowing that Donna has the standing to rebuke Cam should he renege on his promise, it follows that Cam is obligated to Donna to do it. In concluding his discussion Watson considers a “deeply foolish” agreement: two students agree to drink hemlock if either fails to be admitted to a certain graduate program. Suppose neither is admitted, and one wants to get out of the agreement, but the other refuses to let it go. Watson says, correctly, that “on Gilbert's account, each has the standing to demand that…” the other act as agreed, and to rebuke the other for not doing this. He goes on, “This insistence seems to me to have no normative force whatsoever.” Let me clarify my own position on this case. I am happy to allow that the recalcitrant party should have agreed to rescind the agreement. Nor should either party act on the agreement, all things considered, even if it still stands. That said, it has the normative force of any joint commitment, and each party has the standing to demand performance.19 That does not mean that either of them should make this demand, all things, including the content of the agreement, considered. Nor does it mean that either should capitulate to any such demand that may be made. On the contrary, as I would judge, given the content of the agreement, neither should demand performance, nor perform. The joint commitment account of agreements that I have offered respects these points. Here is a related point. Consider a heinous, a deeply foolish, or some other untoward promise or agreement. Assume that this promise should not be acted upon in the current circumstances—it would be wicked, or at best deeply foolish, to do so. One might think at this point that, the normative conclusion being settled, so is any question of who is obligated to whom to do what. There are “no obligations” through the promise or agreement. Watson's reactions may reflect this line of thought. I don't think we should accept it. We must allow that the promise or agreement can still be invoked, that the parties are still related as parties, and that each is therefore obligated to the other to fulfil the promise or agreement just as the other has a demand-right to such fulfilment. Puzzlement as to how that can be may lead to the “no obligations” conclusion. It can be, however, if the promise or agreement is constituted by a joint commitment that has not, by hypothesis, been rescinded. Though the normativity of the joint commitment does not carry the day—one ought to conform, but only if all else is equal, and it isn't—neither it nor the directed obligations and the various standings that ride on it disappear. I propose that unless we recognize something like this structure of thought, many significant human ways of acting, thinking, and feeling will be opaque to us, ways that respond to directed obligations that are independent of morality and that may run counter to its all-things-considered judgments.20 To put it another way, we should be careful not to over-moralize the normative realm in general, and the realm of obligations in particular. Recall that I define a moral demand-right as a demand-right for whose existence one can mount a moral argument without crucial appeal to a joint commitment. I argue in various ways in favor of the conjecture that there are no such demand-rights, and take those who oppose it to have a case to answer. Watson finds the conjecture startling. “It seems,” he says, “to conflict with central and basic tenets of interpersonal morality.” He proceeds to discuss the case I take to be, if you like, the poster child for the idea that there are moral demand-rights, a presumed moral demand-right against assault. He first quotes Locke, who says that reason, “teaches all mankind…that…no one ought to harm another in his life, health, liberty or possessions.” Now there is so far nothing here with which one who is sceptical of the existence of moral demand-rights need quarrel. Locke is talking about what no one ought to do. Whether this is a moral or more broadly normative “ought”, there is no reference here to rights, let alone demand-rights. In a footnote, however, Watson elaborates as follows: “This ‘ought’ expresses a moral law which everyone in the state of nature has the ‘executive power’ to enforce.” I take him to suppose that Locke would say that in a “state of nature” everyone has the standing to demand compliance with this law. Watson links Locke's statements to Hart's claim that, in effect, every adult human being has a demand-right against every other that he not be subject to physical assault, a demand-right possessed not by virtue of special relationships between people, such as promisor and promise, but, rather, “naturally.” In Rights and Demands, I argue that Hart's attempted proof of that claim is invalid, as is an analogous argument offered by Stephen Darwall.21 Watson proposes that the fact that one's search for a ground for moral demand-rights has not turned anything up should not shake the judgment that people have demand-rights against assault, “After all, a great deal of moral life just is theoretically elusive.” That should, perhaps, be a matter of concern. That said, if the judgment in question is indeed widespread, and if it is appropriate to speak of “our moral practices” as Watson does, he may have in mind an empirical “moral community” grounded in a joint commitment of the parties, a community of which Watson and his readers are members. Suppose that the members of this community are jointly committed to endorse as a body the judgment that assault is (in general) morally wrong (and so must not be attempted, all else being equal). This would give everyone the standing to demand of anyone that he not assault anyone, all else being equal. In that way, among others, the moral practices of the community would “give fair warning” to aggressors, as Watson puts it. Watson may or may not be thinking of “us” in a relatively limited way when he speaks of “our moral practices.” In other words, he may be thinking of an empirical moral community comprising less than the large part of mankind. In addition to such communities, I discuss in the book the possibility of a moral community founded in a joint commitment that comprises the large part of mankind.22 I also explore the possibility of an “a priori” joint commitment or commitments of all or almost all human beings to endorse, as a body, certain rules of conduct.23 One would expect such rules to comprise at least a rule prohibiting one human being from assaulting another—absent special circumstances. Normally, as I understand it, there must be an actual expression of readiness to be jointly committed with the relevant others, in order that the commitment come into being. In the case of an a priori joint commitment, the thought goes, it would be common knowledge, without the need for any expressions, of everyone's readiness to be jointly committed in the relevant way. Associating a demand-right not to be assaulted with such an a priori joint commitment does not, of course, refute the demand-right conjecture—the demand-rights in question would rest on a joint commitment, albeit one of a special sort. Arneson suggests that some demand-rights might be basic moral postulates. These postulates, he notes, need not be arbitrary: they can be argued for by “standard reflective equilibrium methods”. Here he responds to my claim that any genuine—as opposed to merely stipulated—demand-right requires a ground. In referring to “merely stipulated” demand-rights I have in mind institutional rules which can in principle make any determinations that their makers choose. If a genuine demand-right requires a ground, then the postulated moral demand-rights that Arneson envisages are not genuine demand-rights. The consequent appears to be correct. With respect to one's possession of one of the postulated demand-rights that Arneson envisages, it would make sense to say, “I have the moral authority to demand that you stop doing that!” This appears conversationally to imply the following. First: strictly speaking, I lack the authority to demand that you stop doing that. Second: it would be morally wrong of you to bring the first point up. You are morally required to do what I am telling you—in the behavioral sense—to do. If this is right, then the joint commitment conjecture would not be refuted by the existence of the envisaged moral postulates. At one point, Arneson asks if one could reconcile the apparent disagreement between the natural rights theorist and myself by noting that, “moral reasons and joint commitment reasons might be just two distinct species of practical reasons, each asserting claims on what we should do all things considered.” On one interpretation I take this to be correct. Before arriving at a judgment as to what one should do all things considered, one must take the normative implications of any relevant joint commitment into account, along with any moral considerations bearing on the situation as a whole. Moral considerations may then win out, dictating that one ought not to conform to a given joint commitment, all things considered, on account of its content, for instance, or some predictable consequence of conforming. It seems, however, that in the alternative Arneson has in mind—and rejects—morality provides one all-things-considered conclusion as to what should be done, irrespective of any relevant joint commitment, whereas a relevant joint commitment, if there is one, provides a different all-things-considered conclusion. I agree that this is hard to credit. Yet it brings something important into high relief: we are dealing here with two distinct normative realms, the conclusions of which need somehow to be reconciled in any all things considered judgment. Further, it raises an important genealogical question. Assuming that human beings have thought in terms of joint commitment far back in human history—for as long as they have been doing things together—what is the relation of joint commitment thinking to moral thinking?24 One possibility, which seems to me plausible, is that moral thinking—in a standard, relatively narrow sense—is to some extent a response to joint commitment thinking. Consider the following example. Suppose that in some pre-historic time four of us are out hunting a stag together. We all do our utmost in pursuit of the stag, and as a result we catch and kill it. Dick sits down to apportion parts of the animal to his hungry fellows. He gives large portions to himself, Steve, and Gary, but gives me a tiny portion, barely enough to keep me alive. I take it that there is nothing in the concepts involved in “hunting a stag together” entailing that Dick should have given us roughly equal portions. Yet I may feel something that goes beyond disappointment or, indeed, horror, at Dick's actions. I may find it appropriate to make whatever sounds and signs I have to to signify that “something has gone wrong.” More specifically I may indicate that Dick's distribution of the spoils is, as we would say, “unfair,” and that I have received less than I “deserve.” Here, I take it, I will have moved from joint commitment thinking to moral thinking. Moral thinking as we know it involves judgments as to what is “right” and “wrong” in contexts in which there are no relevant joint commitments. However powerful and however widespread it becomes, however, it is not clear that or how it could erase our joint commitments with their attendant obligations and rights. In this connection it is important to emphasize that these obligations are not, in themselves, requirements, pro tanto or otherwise: they are relations grounded in the joint commitment in question. More specifically they are directed obligations, obligations equivalent to the obligor's standing to demand its fulfillment. It is always possible that morality rule against a given obligee's fulfilment of these obligations—and, presumably, against the obligor's demanding their fulfilment. Nonetheless, they are “there” to be invoked. Some may take their obligations of joint commitment so seriously that they are inclined to look the other way when they run counter to what morality req