The 2017 Holberg Lecture, by Laureate Onora O'Neill

Publisert 04.09.2019
Baroness Onora O'Neill will take part in the Prize Winner Conversation on 4 September, 2019, in Bergen. We are pleased to be able to publish her 2017 Holberg Lecture here, in full.

Justice without Ethics: A Twentieth Century Innovation?

For centuries discussions of justice and ethics were seen as linked domains of duty in European thought and culture. In the twentieth century they were seen as diverging in marked, interesting and unsettling ways. There is now widespread acceptance that justice is a matter of respect for objectively justified standards, but that (other) ethical standards lack wider justification and reflect either individual choices or shared standards. I shall argue that this view promotes inadequate accounts both of justice and of other ethical standards.

1.  Domains of Duty

For centuries discussions of justice and ethics were closely linked in European thought and culture, but they have now diverged in marked, interesting and unsettling ways.  European traditions had seen these discussions as offering distinct yet deeply linked answers to the classical question ‘What ought we do?’.  Duties of justice were seen as setting requirements on states, other powerful institutions and individuals, which were intended to structure the public domain, typically by their incorporation into law and by use of legal sanctions. Ethical duties also set requirements for (some) institutions and for individuals, but these were to be secured by individual or cultural   efforts, rather than by law.  Yet by the start of the twenty-first century claims that justice and ethics were complementary and linked domains of duty —although still deeply embedded in European languages and culture— were often questioned, ignored or even explicitly rejected.

Today it is widely assumed that while standards of justice have universal scope and are of high importance for all societies, (other) ethical standards do not have universal scope and   on many views    are either a private or individual matter or the views of some specific community or culture, and in either case without wider normative importance. Principles of justice, in particular those now seen as human rights, are seen as setting universal standards for shaping law and regulation, and thereby both institutional and individual action, in all jurisdictions. Ethical principles are widely thought of as anchored in specific cultures or in individual choices and preferences, so as lacking wider scope or justification.

These are momentous changes, and it is not immediately obvious why or how they have come about.  So I begin with sketchy reminders of past views of duty and of some of the changes that led many to see justice—now often identified with meeting human rights standards—as fundamental and universal, and to be embodied and enforced by law, but ethical standards as the creatures of specific cultures or of individual choice or preference. I shall suggest some reasons for the divergence between the justifications proposed for duties of justice and for ethical duties, then ask how complete and convincing the separation is and whether justice can be realised without taking ethical duties and   their justification seriously.

2.  The Decline of Duty

Both philosophical and popular conceptions of justice and ethics had traditionally centred on duties.  In Europe duties had been central to normative debate since antiquity, and had shaped religious, philosophical and popular discussions of how institutions should be constituted and how lives should be lived.  Rights, if discussed, were seen either as special rights created by particular transactions, or as general rights that were corollaries of certain perfect (= complete) duties that specified who had a right to and could claim performance of a certain duty.[1]  Ethical duties, such as duties of beneficence, loyalty or courage, were seen as imperfect (= incomplete) duties, and as lacking counterpart rights.  Many thought of them as duties of virtue because respect for them depended on character and culture rather than on compliance with enforceable requirements.

Given that duties do not have to be matched by counterpart rights, normative reasoning that focuses on duties can in principle offer a wider perspective than can be reached by taking rights as fundamental.  For if rights are taken as fundamental, no account can be given of any duties without counterpart rights: they will be invisible.  It follows that contemporary human rights discourse can at most engage with a subset of possible claims about duty. This is not always obvious, and indeed contemporary advocates of human rights often claim   that their approach extends or strengthens rather than restricts older accounts of what ought to be done.  However, while treating rights as foundational may support stronger claims about sanctions and enforcement than reasoning that treats duties as basic can support, the scope of rights claims will usually be narrower and cannot be broader than that of claims about duties.

In the main this momentous change in views about duty took place in C20, but there were earlier signs of unease.  Duty was still pre-eminent in discussions of what ought to be done at the start of the nineteenth century, where it remained centre stage  across the spectrum from Immanuel Kant’s late practical philosophy to Wordsworth’s 1805 Ode to Duty, with its confident equation of Duty with Divine demand:

Stern Daughter of the Voice of God!
O Duty! if that name thou love
Who art a light to guide, a rod
To check the erring and reprove;
Thou, who art victory and law
When empty terrors overawe;
From vain temptations dost set free;
And calm'st the weary strife of frail humanity![2]

But by the middle of the nineteenth century claims of duty   evoked patchy unease and sometimes even hostility.  Some feared the undermining of moral certainties and clarity, while others were positively eager to see duty downgraded.  Fear is evident in Matthew Arnold’s wistful sadness about the waning of Christian faith, and the ebbing of duty:

The Sea of Faith 
Was once, too, at the full, and round earth’s shore 
Lay like the folds of a bright girdle furled. 
But now I only hear 
Its melancholy, long, withdrawing roar, 
Retreating, to the breath 
Of the night-wind, down the vast edges drear 
And naked shingles of the world. 

Ah, love, let us be true 
To one another! for the world, which seems 
To lie before us like a land of dreams, 
So various, so beautiful, so new, 
Hath really neither joy, nor love, nor light, 
Nor certitude, nor peace, nor help for pain; 
And we are here as on a darkling plain 
Swept with confused alarms of struggle and flight, 
Where ignorant armies clash by night.[3]

But less than thirty years later Friedrich Nietzsche claimed that there was nothing but gain in doing without duty:

What destroys a man more quickly than to work, think and feel without inner necessity, without any deep personal desire, without pleasure— as a mere automaton of duty?[4]

Although their attitudes to the decline of duty are poles apart, both Arnold and Nietzsche see the alternative as an increasing emphasis on personal and subjective standards and concerns.  In this they were prophetic: claims that personal and subjective choices are the successors to the claims of duty beyond the domain of justice gained increasing prominence in the twentieth century.  Indeed, at    the very start of the century  G.E. Moore’s Principia Ethica,[5] ends with a surprisingly influential chapter that endorses a privatised vision of ethics centred on individual experiences of beauty, pleasure, friendship and knowledge, but no longer on families, institutions, communities or nations or their action, and least of all on duty.

3.  Interlude: The Rise and Fall of Patriotic Duty

The decline of duty was, however, very uneven.  The slow retreat of support for duty among intellectuals did not undermine the ethics of duty in day-to-day life.  Indeed, certain appeals to duty gained new prominence   during WWI, when they took the form of widespread, sometimes enthusiastic, insistence that you ought to do your duty, which is above all to serve and even to kill or be killed for your country.  Of course, most   who took this view saw duty to King (or Kaiser) and Country as the public face of duty, to be honoured alongside duties to God, to family and friends, to neighbours and to the poor.  Yet a belief that patriotic duty had distinctive, even overriding, importance became briefly and wildly popular.  It is sobering to remember the fervour with which the outbreak of war in 1914 was greeted, and how widely killing for a patriotic cause was seen as a matter of duty, indeed often of noble duty.

Some even represented (or misrepresented) patriotic duty as an ethic of sacrifice.[6]  Those killed in conflict were seen as making ‘the ultimate sacrifice’, even if they were conscripts who did not choose their fates.  The idea that being killed for a cause and killing for a cause were forms of noble ‘blood sacrifice’ was   widely discussed.  Some supporters of the Easter 1916 rising against British rule in Ireland described those who lost their lives in attacks that they had initiated as martyrs.[7]  And this terminology is still popular in some quarters—particularly at present in the rhetoric of so-called Islamic State.  Classically martyrs defend a noble or principled cause and are killed by others for doing so.  Something quite new is going on when those who kill themselves for a cause (e.g. hunger strikers), or who kill others who are no threat to them (e.g. suicide bombers) are seen as martyrs.  This, it seems to me, is vivid evidence of an ethical tradition falling into disarray.

The exaggerated emphasis on patriotic duty in the early years of WWI was, of course, not universally shared— and it was explicitly rejected by some who were    close to and sympathetic to the cause of Irish independence.  For example, W. B. Yeats explicitly rejected it in his wartime poem ‘An Irish Airman Foresees his Death’, which contrasts patriotic duty with personal choice:

I know that I shall meet my fate
Somewhere among the clouds above;
Those that I fight I do not hate
Those that I guard I do not love;
My country is Kiltartan Cross,
My countrymen Kiltartan’s poor,
No likely end could bring them loss
Or leave them happier than before.
Nor law, nor duty bade me fight,
Nor public men, nor cheering crowds,
A lonely impulse of delight
Drove to this tumult in the clouds;
I balanced all, brought all to mind,
The years to come seemed waste of breath,
A waste of breath the years behind
In balance with this life, this death.[8]

The crowds who cheered in 1914 felt otherwise. But unsurprisingly enthusiasm for patriotic duty waned as the war proved more catastrophically brutal and destructive than expected, or even imagined.  Hostility to the narrow conception of public duty as patriotism in wartime mounted.  It became a leading theme of the poetry of the First War, and animates E. M. Forster’s much-quoted aphorism: “If I had to choose between betraying my country and betraying my friend I hope I should have the guts to betray my country.”[9]  The thought that personal loyalties are more important than patriotic duty resonated and spread, and criticism of patriotic duty expanded into wider questioning and criticism of duties.

4.  Positivisms and the Retreat from Justification

Between the two wars,   initially only in limited academic circles, a more systematic retreat from duty gained ground.  The startling success of logical positivism  with its uncompromising insistence that only empirically verifiable and analytical claims were meaningful, and that ethics, aesthetics, metaphysics and theology should all consequently be jettisoned as ‘literally meaningless’ rejected both duties of justice and ethical duties.

Logical positivism did not offer convincing arguments for its claims, and those it offered were soon questioned, rejected or dismissed. Nevertheless its influence spread from narrow philosophical circles in Berlin and Vienna, partly because all too many of its early exponents were driven into exile across the world. However, while logical positivism failed to show that claims about justice and about ethics were ‘literally meaningless’, it succeeded in spreading scepticism about their justification.

Doing without an account of duty has costs. In the face of the further catastrophes of the Second World War it was widely agreed that standards mattered, especially for the public domain. The Universal Declaration of Human Rights (UDHR) was adopted by member states of the United Nations in the late 40s and signalled a wide commitment to a range of universal standards of justice.  However, UDHR differed from older approaches to justice in three ways. It addressed justice from the recipient’s rather than the agent’s perspective by setting out a list of human rights whose realisation would require others to carry the counterpart duties; it was silent about ethical duties; and it was seen as justified by an appeal to authority.

The last of these differences is significant.  Appeals to Declarations or Conventions (or to other legal instruments such as constitutions, treaties or statute) also appeal to authority. They can offer convincing justifications only to those who accept the authority to which appeal is made.  So while the post WWII affirmation of human rights does not endorse logical positivism, it frequently relies on arguments from authority and thereby on various forms legal positivism.  Those who hope to justify human rights by appealing to authority ignore the flamboyant methodological claims of the logical positivists, but they too   marginalise or reject demands for deeper justification.  Both UDHR and the slightly later European Convention on Human Rights (ECHR, adopted by the Council of Europe in 1950) assume that if the relevant instruments are endorsed by state agreement and ratification that will secure their authority.  While many who stress the authoritative backing of human rights agree that appeals to authority are not enough, and that human rights also require moral justification, the justifications offered are often skimpy—and often seem to take it for granted that the rights set out in the canonical Declarations and Charters can be justified.  Contemporary life remains deeply influenced by versions of legal positivism, and frequently avoids or evades questions about deeper justification of the standards proclaimed.

However, I suspect that legal positivism is not nearly as popular or widespread as appeals to arguments from authority in support of claims about human rights suggest. Despite uncertainties about deeper questions of justification, many who set store by human rights and international law, and more broadly by the rule of law, by detailed regulation and by demanding standards of accountability, probably think that deeper justifications can be provided, and that wider ethical backing for human rights standards is available. However, for everyday purposes they seemingly find it variously necessary, adequate, or perhaps just advantageous, to appeal to authority (whether UDHR, ECHR, or other treaties and laws), and to ignore demands for deeper justification.[10]

5. A Revival of Duty?

In the end the ancient alliance between ethics and political philosophy was not undermined by the inadequacy of justificatory arguments, but by the emergence of totalitarian regimes and the vast human and moral costs of their policies. These same realities made it all too obvious that consigning justice and ethics to the dustbin of history was a bad plan. Yet what emerged after WWII was not a revised or improved version of the ethics of duty. If anything, appeals to duty became yet more suspect because they were repeatedly misappropriated to cloak official misdeeds under totalitarian regimes: from Eichmann to the Stasi[11], morally rebarbative action by state officials was all too often mischaracterised and dignified by claiming that it was a matter of duty.

While both UDHR and in ECHR look superficially as if they might reinstate an account of duties of justice that is nicely shorn of metaphysical and theological presuppositions, and can rise above official misappropriation, the reality is less clear and more troubling, in several ways. I list some obvious difficulties that arise when an account of justice is detached both from any deeper form of justification and from any wider account of ethical duties.

First, because Declarations and Conventions are not in the business of deeper justification, it is unclear what normative weight should attach to the standards they proclaim. To be sure, treating the Universal Declaration and the European Convention as fundamental authorities meant that human rights could be supported in many (but not all) contexts by pointing to these instruments and to the fact that (some but not all) states had ratified them. However, the downside is that these ‘positive’ justifications cannot provide reasons for states that do not accept the claims of the relevant authorities to do so. Appeals to authority may fall on deaf ears, and may offer little reason for states to sign up to human rights instruments, or to abide by them.

Secondly, the rights proclaimed in 1948 were not linked to an adequate account of the allocation of the necessary counterpart duties to competent agents. That is seemingly unproblematic for those counterpart duties that must be held by all. For example, duties not to coerce or not to injure others and other ‘negative’ duties, must be held by all if others are to enjoy secure liberty rights. However other duties that support liberty rights, such as duties to enforce or protect those rights, must be held by specific agents and agencies, rather than by all; and duties to realise social and economic rights must be allocated among identifiable and competent agents if it is to be clear who ought to do what for whom.[12] Proclaiming rights without specifying the necessary counterpart duties and duty-bearers leave it obscure what action is required of whom.

The drafting of UDHR had gestured to the thought that the counterpart duties all lie with states, but then had confusingly also referred variously to nations, countries and peoples. Nations, countries and peoples all lack integrated capacities for action and decision-making that are indispensable for agency, and for carrying complex duties to respect or realise the proclaimed rights. It is no wonder that some initially complained that the rights declared in UDHR were merely manifesto rights, without adequately clear practical import.

These lacunae were addressed up to a point by two UN Covenants of 1966, the International Covenant on Civil and Political Rights, (CCPR) International Covenant on Economic, Social and Cultural Rights (CESCR), which explicitly and specifically assign the relevant duties to states that ratify these instruments. Despite the claimed universality of human rights, this approach left the inhabitants of states that did not sign up to or ratify the Covenants in limbo. Moreover, a careful look at the Covenants shows that they do not in fact assign the duties that have to be met to secure the UDHR rights for everyone to the signatory states. Rather they assign those states second-order duties to allocate and enforce some configuration of duties that will ensure respect for the rights in CCPR and that will support the realisation of the rights in CESCR. For example, Article 2 of CESCR runs:

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.[13] 

‘Achieving progressively the full realisation of … rights … by all appropriate means’ is a matter of ensuring that unspecified others – individuals and institutions that are not identified, and that may not (or not yet) exist – discharge the complex range of duties needed to secure those rights. It requires states to construct institutions and to delegate tasks in order to secure some effective allocation of counterpart duties.

So whereas traditional discussions of duties of justice had focused on human duties to others, the discourse of human rights was more indirect. It focused on second-order duties to bring about some allocation of first-order duties that could, if observed, secure the human rights that had been declared. Despite this limitation, the Covenants of 1966 – now past their 50th year—were clearly an advance on the more indeterminate claims of UDHR, and went some way to address the accusation that human rights were only manifesto rights. Human rights were to be seen as rights with counterpart duties that the signatory states (but not other states) had second-order duties to assign, and to ensure were respected or realised by those to whom they were assigned.

Was it a good idea to assign these complex second-order duties entirely to the states party? One answer might be that it was a good idea, at least at the time, because states alone had powers sufficient to secure respect for and realisation of rights by others. A second, more pessimistic, answer might be that assigning the task of ensuring that everyone and all institutions respect and realise rights to the most powerful institutions is deeply problematic—it is rather like assigning the supervision of hen houses to foxes, a parallel illustrated by the reality that a large number of states have indeed been major and persistent violators of human rights. A third answer might be that the allocation of duties at which the Covenants aimed is now obsolescent. The year 1966 was a high water mark of state power: the Western colonial empires were being dismantled; a Westphalian world of independent states seemed to be emerging; both old and new states were taken to have—and sometimes had— well-defined boundaries, and some of them could exercise power effectively within those boundaries. Since then, however, globalisation has been transforming and reconfiguring power in ways that often make securing respect for and realisation of human rights harder for states. Our world not merely includes a range of rogue states and failed states that will not or cannot secure or respect rights for their inhabitants, but is a world of porous borders, in which many states find their power to secure or respect an adequate realisation of rights is constrained by a variety of powerful non-state actors. These fundamental changes suggest that it may now be less feasible for states that are party to international instruments to be the pivotal bearers of second-order duties to ensure that others respect and realise all rights.[14]

Moreover, even where first-order duties to respect and realise human rights can be effectively allocated to competent agents, ethical duties may also be needed for duties of justice to be secured. While declarations of rights are unavoidably silent about duties without counterpart rights, so silent about ethical duties, it is far from clear that duties of justice, including those that are the counterparts to human rights standards, can be implemented without cultivating certain ethical duties—duties of honesty and decency, for example, may be important for supporting effective duties of justice. Moreover it is far from clear that treating rights rather than duties as fundamental leaves either justice or ethics unchanged: the cultural costs of prioritising recipience over action, and rights over duties, is high. It prioritises a view of human beings as claimants or victims, and may give undue prominence to passive and reactive responses such resentment, rancour and blame.[15] I shall return to consider whether justice can do without ethics in at the end of this lecture, but will first say a limited amount about justification.

6. Deeper Justifications: Principles of Justice?

The contemporary landscape also has some encouraging features. Most evidently deeper justifications of some principles of justice are once again taken to be important, and arguments from authority are not endorsed or assumed in all discussions of justice. In the early post war period many still assumed that logical positivism had undermined duties of justice as well as ethical duties, and claims that ‘political philosophy is dead’ were widely asserted and discussed.[16] But this is no longer the case. Since the 1970s political philosophy has flourished again. Accounts of justice, beginning with those proposed by John Rawls, Robert Nozick, and Jürgen Habermas and since extended and elaborated by many others, now aim to offer deeper justifications of standards of justice and do not view arguments from authority as the sole or as an adequate backing for standards of justice.[17]

Yet while the vast body of contemporary writing in political philosophy seeks deeper justifications of duties of justice than appeals to the authority of Declarations and Conventions can provide, and while it has often emphasised principles of distributive justice which are too readily ignored in human rights approaches, it too for the most part ignores wider ethical questions. Like advocates of human rights, many contemporary political philosophers take it that deeper justification of (other) ethical standards or principles is not feasible.

The thought that we can provide deep (or at least deeper) reasons for principles of justice, but not for (other) ethical principles, was central John Rawls’ later work. His 1985 article ‘Justice as Fairness: Political not Metaphysical’, his 1993 book Political Liberalism and a number of his later essays argue explicitly that deeper justifications can support only principles of justice, and cannot be extended to (other) ethical principles (contrary to the position he had taken in his earlier A Theory of Justice). Rawls’s late work aims to justify principles of justice but no more, and he rejects all forms of comprehensive liberalism that argue for ethical as well as political duties, in favour of the position he calls political liberalism, which is silent about ethical duties. A similar focus on justice without close links to ethics can be found in the work of other leading contributors to the revival of political philosophy. Habermas explicitly anchored justificatory arguments in the possibility of agreement reached via political discourse from which no one is excluded, while Nozick’s libertarian arguments support a maximal private sphere in which individuals’ choices and preferences are seen as decisive; and neoclassical economists have argued from similar premises. Much of the revived political philosophy of the last half century has left ethical duties and their justification firmly out of scope.

7. Justifications: Ethical Principles

The thought that justifications can support political but not ethical standards fits well with some aspects of traditional liberal ideals which stress the importance of protecting individual choice and preference. Yet much as this matters, it can hardly be the whole story. Nobody thinks that it does not matter what individuals choose, or that all choices should be protected. Yet if deeper justifications support only an account of justice, the only choices their proponents will find reason to criticise, sanction or forbid will seemingly be those that breach a requirement of justice, for example by violating others’ rights—a conclusion much stressed and treasured by various liberals, and above all by libertarian liberals. It seems to me implausible to think that a convincing account of justice can be indifferent to everything that is not unjust. More is at stake, and some choices are better than others.

These issues are often obscured by a promiscuous use of the term ‘value’ to refer to whatever individuals happen to choose or prefer. This leaves it fatally obscure whether empirical or normative claims are at stake. Where empirical claims are made about individuals’ choices or preferences there will be no general reason to see anything (let alone everything!) that is chosen or preferred by some agents or by some cultures as valuable: much that is chosen or preferred may be worthless or bad. Some individuals and some cultures choose self-enrichment or sadistic treatment of others, but this does not show that self-enrichment and sadism are values, and the fact that some people and some cultures admire or pursue them does not make them into values. Referring to whatever individuals happen to choose as ‘values’ confuses empirical claims about individuals’ preferences with normative claims about what is valuable, and conflates empirical with ethical claims. Referring to whatever societies happen to admire or pursue as ‘values’ confuses empirical claims about social attitudes with normative claims about what is valuable, and once again conflates empirical with ethical claims.

Three snapshot illustrations of such confusions will have to suffice. First: individual autonomy (variously conceived, and very different from Kant’s conception of autonomy) is widely said to be a highly important ‘value’. Yet individual autonomy can be used to adopt odious as well as admirable principles and decisions, and it is less than clear why it is to count as ‘a value’ if we can offer no account of differences between ethically valuable and ethically unacceptable uses of individual autonomy. Second: appeals to individuals’ choices and preferences are central to much economic theory and consumerist ideologies. But if individuals’ actual preferences are automatically deemed ‘values’, a covert and unsupported normative claim has been advanced: promoting preferences by referring to them as ‘values’ simply misleads. Third: appeals to individual identity discard the older and more precise idiom that distinguished between a person’s sense of identity (a subjective matter) and her identity (not a subjective matter, but anchored in culture and history). On many views identity matters is to be protected because it is not something that can be chosen or altered, but rather defines ‘who I am’. However if senses of identity can be chosen by individuals, and are alterable, they will not define ‘who I am’, and it is unclear why they should be accorded distinctive ethical weight. Where individuals are taken to choose, define and redefine ‘values’ and ‘identities’, or cultures are thought of as embodying them, ethical claims are being replaced by subjective claims. What is on offer is not a justification but a devaluation of values.

8. Can we have Justice without Ethics?

Those who think that ethical standards are a matter of individual choice or of shared attitudes often conclude that aiming for justice is enough, and that the public domain need take no account of (other) ethical standards or of their justification. Yet this view is not, I believe, consistent with taking justice seriously. Working out how to realise justice requires us to take a view of not only of standards of justice, but also of those ethical standards needed for realising justice, and of their justification.

It is widely assumed that duties of justice— and their counterpart rights— can be secured and realised by instituting just constitutions and laws and then complying with and enforcing their requirements. But while requirements of justice limit and constrain just action, they can offer only indeterminate guidance rather than complete instructions for action. Even when legal instruments are reinforced with more specific regulations, supplemented by copious discursive guidance and backed by specific and demanding forms of accountability, proliferating rules can never fully specify exactly what must be done – and not done— if justice is to be respected and realised. Providing more and more explicit procedures for deploying and applying rules has its place, particularly in the procedures of courts and tribunals, of arbitration and administration. Doing so can help established authorities decide how to proceed, and can show whether a decision was reached by a duly constituted authority using an appropriate procedure. But such justifications are limited: they can show whether due process was followed but not whether decisions made or action undertaken were ethically acceptable, let alone optimal, for actual cases.

Principles of justice, like all principles of action, are indeterminate— and indeterminacy goes ‘all the way down’. This point is neither new nor trivial. Aristotle, Kant and Wittgenstein all pointed out that rules of all sorts (principles, standards, guidelines, regulations etc) are intrinsically incomplete, and that indeterminacy cannot be eliminated by adding more rules, more requirements, more regulations or more guidance. There is no way to extend the paraphernalia of institutional life that can fix sharp boundaries between compliance and infraction for every situation. Trying to offer ‘complete’ rules, instructions or guidance, is in principle impossible, not to mention daunting or depressing for those who are meant to live up to them, who may conclude that even compliance demands too much, and end up ignoring, flouting or ‘gaming’ the rules they encounter.

Practical judgement is needed to shape action to fit standards of justice in particular contexts, and there can be no complete methods— no algorithms— for practical judgement. Practical judgment is a matter of combining a clear sense of standards for what may and ought to be done—the plurality of rules and standards that must be respected— with a grasp of a range of further considerations that bear on action in actual cases. For example, in living up to standards of justice, agents may need to take account not only those standards but of the feasibility, the consequences, the affordability and the ethical acceptability of specific ways of implementing or living up to those standards in actual situations.

Taking account of these considerations in particular contexts cannot be done simply by relying on hunch, individual preference or subjective choice, or by invoking widely accepted standards. Nor can freedom of expression provide an adequate discipline for identifying or assessing standards of action. Freedom of expression is necessary for agents to encounter other views and arguments, including ones that challenge their current beliefs and attitudes. But it is not sufficient to ensure systematic or effective consideration of established beliefs and attitudes, or to expose them to searching check and challenge. Reliance on Habermasian engagement in social settings that permit participation in discourse, or on serendipitous [18] encounters with other views, is unlikely to provide a sufficiently robust discipline for good judgement. Practical judgement is more likely to be robust if it is formed and informed by encounter and communication with positions that are structured and disciplined and can bring a diversity of practical and cultural standards and considerations to bear on situations and on action. Practical and cultural disciplines can provide a sustained and informative challenge to received beliefs and attitudes. They can be used to shape action in ways that respect not only the requirements of justice and the various laws, regulations and other requirements that augment and specify these requirements, but a wider range of ethical and practical demands.

Of course, cultures too cannot provide algorithms for action, but at their most effective they can provide a formative discipline for individuals and institutions. Closed, corrupt or enclave cultures and subcultures often cannot provide such discipline: they are more likely to trap thought and action in silos of conformity that insulate both from check and challenge. [19] Wider and more open cultural processes may avoid this danger by opening practical, including ethical, judgement to a range of more rigorous forms of check and challenge, adjustment and to moderation, and thereby also to realistic consideration of the multiple ways in which a plurality of ethical and other standards might be respected in actual situations. [20] They can allow for and foster ways of respecting the requirements not only of justice, but those of ethics, and of further practical and technical requirements.

However if cultures are needed for enacting justice, the ethical standards embedded in them and their justification also matter for justice. As many proponents of justice point out, some cultures and many subcultures are ethically unacceptable. Some are corrupt or destructive, divisive or dishonest; others ride roughshod over standards of justice or damage the capacity of those who live or work within them to engage and communicate with others. But there are also cultures that do not fail in these ways. The insouciant marginalisation of ethical justification that both positivist, subjectivist and indeed communitarian views of ethics have endorsed— even celebrated— overlooks the importance of ethical standards in structuring the considerations that can be used to resolve the indeterminacy of standards of justice .

Attempts to divide normative claims exhaustively into standards of justice that may or must be imposed by authority and those that are simply matters on the one hand of individual choice or preference, tor on the other of shared attitude and culture, therefore needs reconsideration, challenge and (as I see it) revision. Many versions of modern liberalism, including those popular among some supporters of human rights, those that follow the later writings of John Rawls and espouse forms of (merely) ‘political’ liberalism, those that advocate varieties of libertarianism and those that rely on models of ‘rational’ choice, have bracketed or ignored wider questions of ethical justification, and have seen ethical standards either as subjective or as cultural attitudes, but as lacking deeper justification. In doing so they have overlooked the ways in which the implementation of standards of justice unavoidably draws on and is shaped by a wider range of normative considerations.

Implementing and enforcing just laws, regulation and systems of accountability is not enough, and specifically not enough for justice. Justice also needs the support of trustworthy and effective cultures and subcultures that enable those who inhabit them to bring practical and specifically ethical standards to the tasks of understanding what is at stake and of testing and selecting proposals for action. Standards of honesty and reliability, standards of confidentiality and fairness, standards of trustworthiness and discretion, and many other ethical standards are not irrelevant to justice; and providing ever more detailed elaborations of law, regulation and guidance is not enough for justice. For a century past the public discourse of liberal societies has often turned away from ethical questions and from ethical justification, and has assumed that standards of justice as embodied in law, regulation and accountability will be sufficient for the public domain, while tending to see everything else either as a matter of subjective preference or choice or as matter of social attitude. It has ignored the extent to which effectively functioning institutions depend on maintaining standards that go beyond justice —most evidently honesty and civility, confidentiality and fairness, trustworthiness and discretion, but also wider standards such as a degree of charity in construing what others say or do or of solidarity in supporting them. If we think justice matters, I conclude, we cannot be indifferent to wider ethical standards or to their justification.

Onora O'Neill, Bergen, 7 June, 2017

 

Baroness Onora O'Neill is the recipient of the 2017 Holberg Prize. She delivered the Holberg Lecture on 7 June, 2017, at the University of Bergen, Norway. Onora O'Neill is an Emeritus Professor of Philosophy at the University of Cambridge and a crossbench member of the House of Lords in the United Kingdom.

On 4 Septemver, 2017, Onora O'Neill will take part in the first Prize Winner Conversation at the University of Bergen. One laureate from each of the three Norwegian academic prizes--The Holberg Prize, the Abel Prize and the Kavli Prize--have been invited to the University of Bergen to discuss the challenges for the future of humanity and what remains to be discovered within the academic fields of the prizes. 

Philosopher Onora O’Neill will be in conversation with astrophysicist Ewine van Dishoeck and mathematician S. R. Srinivasa Varadhan, each among the foremost in their fields of research. Journalist and broadcaster Vivienne Parry will moderate the conversation. The event will be livestreamed.

 

Notes

[1]  However, it was also widely held that some perfect duties lack counterpart rights.  Many thought there were perfect duties to self, and some (notably Immanuel Kant) that there were  duties of justice without counterpart rights. See my ‘Enactable and Enforceable: Kant’s Criteria for Right and Virtue’. Kant-Studien 107.1. (2016):111–125.

[2]  Cf. William Wordsworth’s 1805 Ode to Duty.

[3]  Matthew Arnold, Dover Beach, 1867.

[4]  Friedrich Nietzsche, The Antichrist, 1895, Part 11.

[5]  G.E. Moore Principia Ethica (1903),

[6]  Cf. the pre-war patriotic version of Cecil Spring-Rice’s verse (rewritten after 1918 as the Christian hymn ‘I vow to thee my country’) ,which runs: ‘I heard my country calling, away across the sea/Across the waste of waters, she calls and calls to me./Her sword is girded at her side, her helmet on her head,/And around her feet are lying the dying and the dead;/I hear the noise of battle, the thunder of her guns;/I haste to thee, my mother, a son among thy sons.

[7]  There was subsequent disagreement whether the leaders of 1916 should be seen as martyrs, which has persisted.  See recently Frances Flanagan, Remembering the Revolution: Dissent, Culture, and Nationalism in the Irish Free State, Oxford University Press, 2015 and Liam Kennedy Unhappy the Land: The Most Oppressed People Ever, the Irish?  Merrion Press 2016

[8]  W. B. Yeats “An Irish Airman Foresees his Death” written during the war,  but not published until after     1918

[9]  E. M. Forster  Two Cheers for Democracy

[10]  Deeper justifications of normative claims and principles, including those that are basic to justice and to ethics, are I believe feasible, and need not rely on popular but questionable justificatory strategies that appeal either to subjective preferences or to contingent or hypothetical agreement.  I set out what I believe can be provided in Onora O’Neill, Constructing Authorities: Reason, Politics and Interpretation in Kant's Philosophy, Cambridge University Press, January 2016

[11]   Hannah Arendt,  Eichmann in Jerusalem: The  Banality of evil,  Penguin Books , 1963; Timothy Garton Ash  The File: A Personal  History,   Harper Collins, 1997.

[12]  The point has been emphasised for many years.  See for example Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, Princeton, 1980, second edition 1996.  (check)

[13]  Article 2 CESCR at http://www.unhchr.ch/html/menu3/b/a_cescr.htm.

[14]  Simon Caney Justice Beyond Borders: Global Political Theory Oxford University Press 2005; Onora O’Neill, Justice across Boundaries: Whose Obligations?  Cambridge University Press, 2016.

[15]  Criticism of ethical writing that focuses narrowly on these and similar responses can already be found in Friedrich Nietzsche, The genealogy of morals, Part III, Section 15 , and is prominent in some recent work such as    Bernard Williams, Ethics and the Limits of Philosophy, and other work that casts people largely as victims and recipients.  For historical illustrations see Liam Kennedy Unhappy the Land: The Most Oppressed People Ever, the Irish?  Merrion Press 2016,

[16]  The formulation is due to Peter Laslett, who famously wrote ‘for the moment, anyway, political philosophy is dead’ in the introduction to the first of his series of edited books on Philosophy, Politics and Society  Basil Blackwell, Oxford, 1950, vii; the theme was widely discussed for some years.

[17]  Although they avoid arguments from authority, contemporary writing on justice often assumes that agreement, or at least agreement reached under specified conditions, will be an adequate source of deeper justification.

[18] Cass Sunstein, #Republic: Divided Democracy in the Age of Social Media, Princeton 2017.

[19]  Gillian Tett, The Silo Effect: The Peril of Expertise and the Promise of Breaking Down Barriers,  Simon & Schuster 2015.

[20] Cf.  Gunnar Skirbekk Processes of Modernization: Scandinavian Experiences which  suggests that modernisation in C19th Scandinavia depended on a contentious interplay between the two differing highly structured discourses, namely those of State Officials and those of successful popular movements. Not yet published.