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The ethics of parts and wholes.

A main thesis of George Fletcher's book(1) is that utilitarians who wish to outlaw some kinds of desecration and public indecency are allowed no argument by their theory except "giving offense to others," which is quickly shot down by the First Amendment in the numerous cases in which the offenders are "expressing" something; whereas communitarians can explore arguments that do not have this liability. I wish to examine some of the arguments underlying the second part of his thesis; in doing so I shall draw upon and expand what I said earlier in The Non-suicidal Society(2) and "Loyalties."(3)

There is a cluster of interrelated feelings and dispositions which, in different ways, illuminate each other as well as loyalty. They include pride, shame, self-respect, egoism, alienation, sense of community, sense of possession, and social identity. Loyalty, as well as pride and shame, is a cousin of egoism. Only if I consider my society mine (and I am not alienated from it) am I capable of being proud or ashamed of it or loyal or disloyal to it; for these are all ego-dependent notions. I cannot, for example, be proud or ashamed of an iceberg, or of Bancock, unless I think I own or made the iceberg, or think of Bancock as my city. The only things I can be proud or ashamed of besides myself are things that are mine, in a sense of "mine" that greatly antedates legal ownership.

Why, we might ask, do I think of anything as mine? I suspect that the earliest form of the idea relates to basic needs more than to either exclusive proprietorship or some prehistoric analog of legal ownership: my mother, my children, my family, my clan, and my safe and familiar home turf. These earliest "possessions" were social and contributed to the construction of my conception of myself by means of social categories--as son, parent, family, and clan member; or did so as soon as people were sufficiently evolved to have a conception of the self. Feelings of loyalty and, later, the "concept" of it, arose in response to relations between myself and both what I needed and what needed and made demands on me. But loyalty is not just a variant of egoism because there is an immense difference between what benefits me and what benefits my child or my country. This is the paradox of egoism and group egoism (as well as love) that perpetually confuses people about what is selfish and what is not. One acknowledges the existence of something one loves as one loves oneself, but which is not oneself and can require the sacrifice of the self.

However, possession is only part of what is necessary for pride or shame; once I have a sense of possession, objective features of things come into play. The iceberg is a potential object of pride because it is grand, but a dead cockroach on my kitchen floor or a hole in my roof is not. Like pride, loyalty depends on both sense of possession--or better, its more complex relative, sense of social identity--and the repeatable features of things. There do seem to be things we just value or disvalue, whether or not they are ours. A heap of garbage or the dead cockroach is disvalued, whether it is my garbage or anyone else's. Intelligence and compassion are admired independently of loyalty, admired even in our enemies. We point with pride to the admirable qualities of our city and are ashamed of its disgusting qualities. Great poverty, ugliness, or evil government can alienate me and eventually kill loyalty, while beauty, friendliness, justice, and unique physical features enhance my loyalty. Alienation is the contrary of loyalty; it is the blocked normal development, or the later loss, of a sense of possession and identity with my family, workplace, city, or nation. Loyalty is close to love and implies concern; alienation manifests itself as indifference or hostility.

Loyalty-enhancing and -alienating qualities are not necessarily moral or even admirable. There are numerous and sometimes surprising causes of loyalty or alienation, and their ultimate explanation, I believe, has to be anthropological and evolutionary. Many such causes are cross-cultural and probably trigger innate predispositions. That is, weedy, junky patches in the village hid snakes and sharp objects, unique features of the terrain told us when we were home and therefore safe, cleanliness was a sign of social discipline and hence of safety, rituals gave those included in them a sense of acceptance and belonging and diminished fear of banishment, and, of course, prolonged living in a community or territory testified to it as a place of security.

A society, unlike an iceberg or a collection of paintings, is a group of persons who share a set of values, institutions, practices (such as language), and, usually, a bounded physical location. When I think of it as mine, I know I am part of a group that thinks of it as ours: sense of possession becomes sense of community, and a social identity is created that becomes part of my sense of self. I become capable of shame before the eyes of my community. Shame is more than pain at failing one's own expectations; people who are ashamed lower their gazes and hide their persons or their faces. It is a world-wide, social feeling, prompted by knowledge of the disapproval of those with whom one shares a social identity.

The thought of feeling ashamed before family, fellows, and community is the main deterrent of crime besides the police; prior to the existence of police, it ranked second behind, and was closely related to, fear of ostracism and banishment. This is why people are more likely to do shameful things in strange cities, and why alienated people who lack a sense of identity with a (non-criminal) community cannot easily be rehabilitated. If citizens do not have group loyalty and fear disgrace, it is unlikely that their community can remain sufficiently attractive and crime-free to be a place where anyone wants to live. Plainly, children who are missocialized so that they are incapable of feeling shame and disgrace grow into dangerous adults who lack the most important inner check on behavior. For this reason, American urban slums would benefit greatly if young people could be raised to feel strong loyalty and to fear disgrace before their families and their communities.

John Stuart Mill said that the main guarantor of moral and non-criminal behavior was our "internal sanction" or conscience. For Mill the internal sanction was a kind of discomfort, and therefore, like shame, it was linked to egoism, but less understandably so than shame because it lacked public reinforcement. Mill's conscience is like a Pavlovian-induced headache, which someone might find it rational to try to cure by psychiatry or numb by repetition of the act. But it is more difficult to numb a sense of shame, short of alienating oneself from one's society, because one is shamed by others, not by oneself.

Loyalties, Fletcher points out, depend on the "historical self." This is important to his claim that obligations of loyalty clash with impartial morality. Saying that the self, as a moral subject, is historical means that from the moral point of view the self is more than just a collection of qualities: it is a particular, related by heredity, geography, upbringing, and love to certain persons and not to others. Loyalty to family, community, and country is like an arranged marriage; one doesn't choose one's spouse but one is specially obligated all the same. It is on such issues that the organic conception of society, of which the morality of loyalties is part, clashes starkly with liberal individualism, which thinks that obligation arises either from voluntary agreements--promises, contracts social and otherwise--or from the observation of suffering.

Obligations of loyalty are irreducibly self-referential. My loyalty to my wife or my country cannot be reduced to an obligation to help anyone or any country with certain characteristics: When the "my" is analyzed out of my obligation, I may still be obligated, but not out of loyalty. Impartial morality and loyalty often oblige me to do the same thing, such as care for my children; when one or the other ground is subtracted, a diminished obligation may remain. In any case people generally know why they feel obligated, and if it is for both kinds of reasons they will say so.

Loyalty obligations typically make their presence felt in inter-familial or international conflicts, where impartial morality may make opposite demands. Impartial morality is intra-tribal: among my children, or my fellow citizens, or my fellow rational beings, I am obliged to treat equals equally. Every group loyalty generates a domain of impartial morality that reaches to the edge of the loyalty and no further, and within which no one can be denied a benefit without a reason. It follows that just as people have nested and overlapping loyalties, there are nested and overlapping domains of impartial morality. Hence conflicting loyalties (to my family, country, species) parallel conflicting impartial principles (care equally for all of one's children, do what benefits all of humanity).

It also follows, seemingly paradoxically, that whether my obligation is one of loyalty or one of impartial morality is relative to one's perspective. If I say that all humans have equal rights to the best health care, including organ transplants from baboons, the person who extends the right to life (or, indeed, to health care) to baboons will correctly judge me to put species loyalty ahead of "impartiality." However, I don the hat of impartiality and throw the charge of national partialism at the European who will not share health dollars equally with African countries. I am impartial relative to those who judge from inside a narrower moral domain, loyalist and partial relative to those who judge from a broader moral domain. From the standpoint of moral psychology there is no such thing as unqualifiedly universal or "impartial" morality. When someone admonishes us to think of the good of everyone, the reply must be: "Think of the good of every what?" Everyone can be defined so as to exclude anyone.

Philosophers in the utilitarian and contractarian traditions have striven to reduce obligations of loyalty, sometimes called "special obligations," to impartial morality. Sometimes the question is begged by declaring that obligations that cannot be reduced to impartial ones are not genuine. Sometimes it is argued that obligations of loyalty are impartial because if I ought to be loyal to my child (or country or firm) then everyone ought to be loyal their own children (or countries or firms). But this only says that if I ought to be partial to my own, then so should everyone else. A higher-order universalizing of the obligation to be partial to one's family is not the same as universal impartial morality.

The irreducibility of loyalty to impartial morality underlies Fletcher's nice dilemma that utilitarians cannot justify criminalizing public indecency and desecration of the flag, even when they think they should. On the one hand, utilitarians find no sense in claims that desecration and obscenity are "wrong in themselves;" on the other hand, when they want to criminalize actions because they "cause offense to others," and these actions can be construed to have symbolic content, they are immediately defeated by appeal to the First Amendment.

Many people feel that utilitarian reasons are not fully moral reasons; it is as though utilitarian claims were too obvious and too demonstrable, and morality by contrast a kind of superior mystery. The substitution of "offending a group" for the ideas of desecration and dishonoring seems to take the opprobrium and deep sense of wrong out of these acts, by making their wrongness mere harms that can be reversed by the latest public opinion poll: burning the flag, or teaching about homosexuality in the New York City public schools as a candidate lifestyle, at worst clashed with fickle sensibilities. One wants to say, as Fletcher seems to at times, that there is all the difference in the world between teaching my children that something is wrong and asking them to check first whether it might offend people.

Thirty-five years ago a somewhat similar position was defended by Sir Patrick Devlin in his famous essay on The Enforcement of Morals.(4) Framing the issue as what should be the proper relation between crime and sin, Lord Devlin defended the right of a majority to make criminal what morally offended it. He had in mind public indecency, homosexuality, prostitution, and other so-called "victimless crimes" about which people felt moral horror. Devlin was criticizing the Report of the Committee on Homosexual Offenses and Prostitution, known as the "Wolfenden Report;"(5) Fletcher is criticizing contemporary utilitarians. Devlin says: ...[T]he law exists for the protection of society. It does not discharge its function by protecting the individual from injury, annoyance, corruption, and exploitation; the law must protect also the institutions and the community of ideas, political and moral, without which people cannot live together. Society cannot ignore the morality of the individual anymore than it can his loyalty; it flourishes on both and without either it dies.(6) Fletcher, too, speaks of "...harm, not to individuals, but to a collective sense of minimally decent behavior necessary to sustain group living" [146].

Both Fletcher and Devlin needed to develop the idea of harm to the collectivity with more attention to the details of how this harm filters down to individuals, and with less stress on the idea of a morally outraged public: There have been times when Jews walking around loose morally outraged people. The very words "fornication" and "miscegenation," which named crimes until quite recently, are becoming archaic. Sometimes Devlin seems to think of offenses against morality from a subjective perspective, as what offends people's moral feelings, which is not very different from the utilitarian's notion of "causing offense;" and sometimes he seems to mean offenses against moral truth. To the extent that Fletcher condemns disloyalty because it offends people's moral sensibilities, his position too is not so different from the utilitarian's. For in the absence of a detailed argument why flag desecration or public indecency is wrong, saying they are felt to be "wrong in themselves" is not so different from saying they offend others. In fact, the utilitarian's description of how an offense is perceived by the offendee often is the idea of offended moral feelings; this of course is the patronizing side of utilitarianism: other people's moral outrage is just more negative hedons to toss onto the hedonic balance.

Fletcher's position is an advance over Devlin's because Devlin speaks of the community's need to defend a more or less reasonless absolute morality that religion sanctions, whereas Fletcher talks about a community's need for rituals and safe places. But I would have liked to see him press this more than he does. Sometimes he writes as though appealing to loyalties, instead of to what offends, will let us go back to the idea that flag abuse and adultery are wrong in themselves. However, these things never were, in any coherent sense, "wrong in themselves," however much people felt them to be so. Fletcher holds back from offering a morality of loyalties that is as thoroughly secular and demystified as the morality of utilitarianism. Yet I believe it can be made so. I found myself wanting to hear exactly how public indecency harms the community, and most important, how these social harms are decomposable into harms to individuals. For while I consider myself a communitarian, I mean by that that individuals cannot flourish without social identities and healthy communities; I do not mean, or even comprehend, that something can harm a community without its ever having an adverse affect on individuals in the community.

Perhaps he worries that laying out the route from harm to the community to harm to the individual will lead him back to utilitarianism. It does do that. But it does not necessarily lead to individualism, and it is individualism, and not utilitarianism, that is the real foe of loyalty. It is individualism, not utilitarianism, that rejects the close dependency between individuals and society needed to make out the causal chains that run from what harms society to what harms the individuals in it. However, the organic theory of society, from Rousseau and Hegel on, maintains that individuals can flourish only when they are enmeshed in a culture and have cultural identities. Individualists might object that in an organic or communitarian society the individual is secondary to the community and may be sacrificed for it. True, soldiers are asked to risk death for their country. But utilitarianism surely is as notorious as the organic theory of society for being willing to sacrifice individuals for "the common good." As critics of utilitarianism, including Fletcher, have pointed out for the past 150 years, the individual is only a tiny quantity of pleasure and potential pleasure, insignificant compared to the pleasure at stake when we calculate what we need to do for the good of "everyone."

Fletcher weakens his defense of loyalty by not flatly rejecting the idea that flag abuse, adultery, and other acts of disloyalty are wrong in themselves. Perhaps a few things, such as torture, can be said to be wrong in themselves, if we mean by that phrase something relatively mundane, such as that our abhorrence of torture doesn't depend on our abhorrence of anything else. But flag abuse is too far up in the cultural superstructure to be like torture. People can feel all sorts of things, such as fornication and miscegenation, to be wrong in themselves, without their being so in any intelligible sense. Philosophers need to explain why such things are wrong, if they are wrong. Cases can be made for making betrayal, desecration, graffiti writing, and public indecency into crimes, but the arguments are sufficiently complex that they do not at first look like utilitarian ones. An outline for such an argument might go as follows.

Humans are innately social animals who evolved the emotional equipment to be receptive to socialization into cultures, on which their physical survival was completely dependent. What most threatens a culture, apart from physical decimation, is its people's alienation from its ideals, values, and way of life, that is, their losing the sense that these things count for anything. This has happened to many traditional societies that encountered dominant European cultures. The cultural death of American Indian tribes, for example, often was also the death of members' social selves and of their sense that their lives had meaning. Actions that threaten to ruin the integrity of a culture by degrading it in the eyes of its members thereby threaten to ruin the individuals in it.

Flag abuse, graffiti, and public indecency are not "wrong in themselves," nor are they wrong just because they offend. They are wrong, and sometimes properly criminal, because they strike at a culture's honor and compromise its self-respect; because they threaten people's sense of their culture both as a proper object of pride and as a place of security; and because a culture that does not defend itself is viewed by its members as poor-spirited and half dead, which in turn threatens their social identities. If israel had forgiven Adolph Eichmann because he was a harmless old man, the shame most Israelis would feel for their country would also be shame for themselves as Israelis. Tolerating subway graffiti was poor-spirited of New York City, much like a person letting his appearance and selfdiscipline go to pot, and it gave its citizens an overall sense of disorder and insecurity on their home turf.

Even if flag defilement, subway graffiti, and public indecency cease to offend, they can still diminish our sense of security, group loyalty, and social identity. The harm done by certain behavior is not at the whim of what people currently take offense at. It is a more objective harm, one which clashes with the universal psychology concerning physical environments and social structures that make people feel secure, ashamed, or alienated, and which is part of our innate sociality. Public fornication usurps the space that one's tribe provides free of threat, shock, and disorder. As in the case of subway graffiti, it is not merely that the act makes me uncomfortable because it intrudes upon a public space, a commons; equally unnerving is the fact that its toleration reveals my society to lack a quality that, while hard to put a name to, seems to straddle style, class, and self-respect.

There are certain blows at the soul of a culture and at its symbols of integrity that a non-suicidal society reasonably makes criminal. If such actions are tolerated, they harm individuals, first because they are expressions of unrequited contempt for the culture's values, public space, and institutions, and second because they cause insecurity, shame, alienation, and a diminished sense of what one is. This is harm to individuals that takes a fairly circuitous path. The argument remains utilitarian, for I am still talking about harms, and this may help convince those utilitarians who come to see that some (but not all) "victimless" crimes pick up their victims further down the road. But appreciating the argument requires some sympathy for an organic conception of society and requires also that we take seriously our dependence on the well-being of our culture. Mary Midgley has said that human beings are born half-finished, requiring a culture to complete them.(7) Contractarians and radical individualists may find it impossible to accept such indirect harms to individuals; for they do not accept a connection between the state of society's soul and the state of an individual's soul because they do not believe society has a soul. They believe the individual's relation to society is purely commercial, like one's relation to a gas station: one pays taxes, receives certain products in return, and the account is quits, with no room for obligations generated by loyalty, love, and pride.

Not all disloyalty is wrong; consider, for example, the racial disloyalty called miscegenation. And I think that technology, together with knowledge of human nature, can overturn the claim of mother-child loyalty in the case of surrogate motherhood. It is puzzling to me why Fletcher is so strongly against surrogate motherhood, for mother-loyalty doesn't condemn it if one takes care not to let the mother bond to the infant. Fletcher rejects contracts that require sacrifice of future freedom and compares them to pacts with the devil. However, all contracts demand sacrifice of future freedom--I must do certain work, produce a manuscript, and so on, although I confess that sometimes I have Faustian thoughts about pacts with my publishers. I don't think the case has been made that the mother's giving up the paid-for baby is betrayal.

There are two problems that the morality of loyalties cannot fully escape. First, the shared morality that creates community and social identity sometimes is factually implausible, as when the Emperor Constantine announced to his legions that homosexuality was the cause of earthquakes; or it is xenophobic and repressive.

Second, the morality of loyalties ultimately cannot escape relativism and hence the taint of not being fully moral that goes with relativism. We arrive at relativism in two ways, by looking at loyalties from the outside, which makes them parochial and quaint, and by a fairly rigorous logic that makes loyalties inconsistent unless they are relativized. I have discussed this in detail elsewhere,(8) but the inconsistency problem can be easily sketched: if I ought to help my country win out over Ruritania, in a conflict such that a broader moral domain I accept doesn't show one of these countries to be the villain, then I must agree that Franz ought to help Ruritania win out over my country. Usually, if someone ought to help X win, it is implied that X ought to win. I can avoid implying both that X ought to win and ought to lose only if I relativize these obligations and claim it is right for me that my country win, and right for Franz that Ruritania win. Fletcher's defense of loyalties doesn't take up these problems, but they do require consideration.

NOTES

(1)G. FLETCHER, LOYALTY: AN ESSAY ON THE MORALITY OF RELATIONSHIPS (1993). Bracketed numbers in the text refer to pages in Fletcher's book.

(2)A. OLDENQUIST, THE NON-SUICIDAL SOCIETY (1986).

(3)79 J. PHIL. 173 (1982).

(4)Published as a pamphlet by the Oxford University Press (1959) for the British Academy.

(5)Her Majesty's Stationery Office (1957), Command 247.

(6)P. DEVLIN, supra note 4, at 23.

(7)M. MIDGLEY, BEAST AND MAN 286 (1978).

(8)See A. OLDENQUIST, supra notes 2 & 3.
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Title Annotation:Loyalty
Author:Oldenquist, Andrew
Publication:Criminal Justice Ethics
Date:Jan 1, 1993
Words:4121
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