The sociologist and law professor Mark Osiel would like to draw your attention to a peculiar, perhaps even paradoxical, aspect of our legal system: We often grant people rights that we hope they will not exercise, or that we trust they will exercise only sparingly, because the behavior that is authorized is at odds with our common morality. Osiel calls these “rights to do wrong.”
Consider the law of personal bankruptcy, which gives you a right to absolve your financial obligations. Exercising this right could help many Americans who are struggling to make ends meet, but relatively few take advantage of it, because declaring bankruptcy is widely thought to be shameful. Indeed, our bankruptcy system implicitly relies on this informal discouragement. If the social stigma were to disappear, Osiel notes, bankruptcy law might “quickly become unsustainable, economically and politically.” Instead, we have a system — part legal, part extralegal — that succeeds in doing what legislation alone could not easily be drafted to do: getting people to declare bankruptcy only when they feel they really need to.
In THE RIGHT TO DO WRONG: Morality and the Limits of Law (Harvard University, $45), Osiel argues that to better understand how law works, we need to pay more attention to this interaction between relatively lenient rights and a more stringent morality. The book is full of examples. We have a constitutionally protected right to highly offensive speech, but it’s a right that, when exercised, often generates widespread moral protest. Militaries have a right, according to international law, to kill civilians during armed conflict if the deaths are “incidental” and not “clearly excessive” to the military purpose. But few Western powers openly embrace this right, voluntarily adopting more ethically demanding rules of engagement. And while Roe v. Wade recognizes a right to an abortion, even many of its supporters think this right should be exercised with restraint, as captured in President Bill Clinton’s formulation that abortion should be “safe, legal and rare.”
Social mores change, of course, and Osiel is alert to how those changes affect these areas of law. In the case of bankruptcy, for example, there is evidence that the stigma has in fact weakened, leading to more bankruptcy petitions; in response, legislators have made the requirements for declaring bankruptcy more difficult. Osiel takes this to be a general lesson: The less we can rely on a common morality to temper the exercise of our rights, the more the law must “penetrate even farther into areas of our lives” to explicitly codify what is permissible.
Like Osiel, the philosopher Todd May is concerned with a moral gap. But while Osiel focuses on the gap between law and morality, May worries about the gap between our everyday moral lives and the demands of our best moral theories. In A DECENT LIFE: Morality for the Rest of Us (University of Chicago, $25), May argues that whichever moral theory we might favor — be it utilitarianism, Kantianism or virtue ethics — “we will find it difficult to live up to its requirements” because “all these theories ask more than most of us are capable of.” Unable to be a moral saint, but unwilling to accept moral mediocrity, May seeks a third way: an approach to living that acknowledges our moral limitations but still offers ethical guidance. He calls this ideal “decency.”
May’s book is a work of popular philosophy, and there is looseness at times. Though he gives an impression to the contrary, many philosophers share his worry that moral theories, however persuasive as abstract accounts of right and wrong, can fail as practical guides to decision making. Typically, these philosophers view this failure as evidence that a theory is incorrect or incomplete, and thus must be corrected or supplemented — not that the moral life, too lofty to be attained, is only to be contemplated by academics. In trying to make moral theory more “realistic,” they, unlike May, still take themselves to be doing traditional moral philosophy.
As it happens, many of May’s own insights are in this vein. When he frets about the philosopher Peter Singer’s extreme demand that we sacrifice our deepest personal commitments to help starving people on the other side of the planet, he purports to be showing us how hard it is to obey Singer’s theory. But the sharp arguments that May makes here — for example, that our duties to others should not undermine what makes our own lives worth living — seem to show something else: how unconvincing Singer’s theory is as an account of right and wrong. In these moments, May is still operating as a traditional moral theorist, his own protestations notwithstanding.
When it comes to understanding decency, May has two requirements. The first is that we start with a recognizable description of ourselves in our everyday moral lives. The second is that we locate there a moral attitude that, when obeyed more faithfully, leads us to better behavior, without upending “what is dear to us.” For May, one such attitude is simple acknowledgment of and respect for others: that we recognize that other people exist, that they are carrying on their own lives and that “we can do something to make that carrying on just a wee bit less complicated.” Whether this is decency, as opposed to morality, may depend on how much you think morality asks of us.
Holly M. Smith is one of those philosophers like May who are troubled when moral theories fail to help us make real-world decisions. In her book MAKING MORALITY WORK (Oxford University, $67), she characterizes as “austere” the view that a moral theory need not have concern for its usability. But her focus differs from May’s. He is interested in what Smith calls the problem of “motivational limitations”: our inability to muster the will to do what a moral theory instructs. Smith is more interested in the problem of our “cognitive limitations.” What if we grasp the principle of utilitarianism, for example, but because of ignorance or uncertainty about the predicament we find ourselves in, or because we simply aren’t smart enough, we can’t determine which of our actions would in fact promote the greatest good? If a moral theory cannot offer guidance in such all-too-human situations, is that the theory’s fault or ours?
Smith’s answer is diplomatic. She does not buy the “austere” claim that moral theories are just theories, whose only role is giving an abstract account of right and wrong. But neither is she convinced by the “pragmatic” view that a moral theory is correct only if it can also be used directly by everyday people to make decisions in the real world. In the end, she is drawn to a “hybrid” approach. If a moral theory is correct, she argues austerely, it is correct apart from whether it can be easily used; yet at the same time, she insists pragmatically, everyday people must somehow be able to deploy moral principles to guide their decision making.
The solution, for Smith, involves dividing a moral theory into two levels: upper and lower. The upper level is the theoretical account; the lower level is some kind of simpler and more practical guide to behavior (perhaps a moral “laundry list”) that anyone, including children, could grasp and use. The hunch is that everyday people should be able to at least indirectly access the insights of moral theories, even if they have only limited comprehension of the overarching theory, and even amid the untidiness of the real world.
Working out the details of this proposal turns out to be tricky. As Smith shows, if you create a practical guide that is sophisticated enough to recommend all the same behaviors as the overarching theory, you risk ending up with a guide so sophisticated that it succumbs to the very problems of usability that got us into this mess in the first place. In the end, Smith believes she has cracked this nut, at least as well as it can be cracked. But she confesses to some unease that her answer — presented in nearly 400 pages of technical exposition — is “hardly accessible” to most people.