Berkley Center

Barbara Herman, Griffin Professor of Philosophy and Professor of Law at UCLA, presented material from a book in progress, gathered under the title, “Imperfect Duties.” As conceived by Immanuel Kant, on whose work Prof. Herman is building, these duties leave room for the agent’s discretion—a puzzling idea. Her suggestion is that it is part of such a duty that the agent ought to shape how he satisfies it. Such an agent is a “building agent.”

Prof. Herman aimed explicitly at linking Kant’s moral philosophy to the seminar’s theme of moral innovation. At the outset, she noted that, for several reasons, Kant’s ethics might not seem a promising place to look for understanding moral innovation. For one thing, it has a reputation—perhaps ill-deserved—for rigorism and inflexibility, arising out of its undoubted commitment to universality and an a priori grounding for moral claims. For another, it applies to all rational beings, wherever and whenever they live, and not just human beings. Dominant readings of Kantian ethics, which center on his Groundwork of the Metaphysics of Morals, make the prospects for modeling moral innovation on a Kantian basis look bleaker still. These readings attempt to reconstruct the way that content arises from the a priori moral law in terms of test procedures that apply to individuals’ maxims (“the subjective principles on which agents in fact act,” Herman has elsewhere written). Many philosophical careers have been made on demonstrating that these tests do not work. Further, as Hegel claimed, without an antecedent indication of what counts as a moral question, the view remains empty.

To get past this impasse, Prof. Herman suggested that we must leave aside this dominant reading, which mistakes the role of Kant’s Groundwork. Parallel to Kant’s Metaphysical Elements of Natural Science, it provides a philosophical account of a subject matter and is not intended to provide practical guidance. For the latter, we must look to Kant’s Metaphysics of Morals, and in particular to its idea that morality is a system, one that integrates politics within it. Morality requires that we be beneficent; but beneficence presupposes private property, which in turn, according to Kant, requires a republican form of government.

In Prof. Herman’s efforts to think this through, a seemingly non-Kantian question kept pressing itself, namely, “What is this duty for?” In the case of property, this question admits of two importantly different answers. One is that it allows for the maximal compossible liberty of each. The other, more friendly to education, culture, and the like, is that a system of property enables us to build an ethical habitat together. In the seminar, Prof. Herman explored how this idea of habitat construction indicates what a Kantian account of moral innovation could look like.

An ethical habitat is importantly one in which people are able to ask for and to give justification. It must support the idea of public reasoning and requires a level of political transparency. An important sort of innovating move arises when the public decides to “bump a duty up” one level by establishing a legal requirement or claim. Whether this is advisable or even possible may depend upon the community’s contingent circumstances. For instance, two hundred years ago, it would have been unintelligible to claim that there is a right to housing, whereas now it is. In working within such contingent constraints, our efforts at ethical habitat construction will exhibit path dependence: it is not as if there is some a priori ideal on which we are necessarily converging.

One line of questioning concerned whether this idea of “bumping duties up a level” and the underlying Kantian commitment to universality generates a strong pressure towards national and global centralization. Prof. Herman responded that there is room within the view for the full range of discussions we in fact have within, say, the US federal system about the level at which given responsibilities should be lodged. In considering such topics as the control of education, we should continue to think of morality as a system that embraces these topics.

Another line of questioning concerned the import of the Kantian focus on rational beings and the limitations that this may bring. One answer was that it supports the idea, just mentioned, of public justification. A second layer concerned how the view treats the interests of non-human animals and other entities that cannot engage in public reasoning. About these, Prof. Herman defended the Kantian distinction between duties to (one’s co-reasoners) and duties with respect to (entities incapable of reasoning). The idea of public reasoning, she indicated, we should understand in reasonably concrete political terms, something to be worked out as part of our habitat construction, rather than in terms of an idealized “kingdom of ends.”

Asked to clarify the idea of a right, Prof. Herman indicated that whereas perfect duties override self-interest, rights override both self-interest and considerations of public welfare. Even so, considerations about what, say, one’s property is for—what would be a good use of it—remain apt, as issues in the morality of gift-giving illustrate.

Prof. Herman resisted the suggestion that this teleological layer of duties—their “objects”— made the view vulnerable to being repackaged as an indirect consequentialism. There is no unified dimension of assessment; rather, the system is throughout a matter of process (public reasoning).

In this process of public reasoning, she was asked, what role is there for the reasoning of those in the past? Is there an obligation to take their reasoning into account? Perhaps so, was Prof. Herman’s answer—but if so, not because this is implied by the concept of law, but, rather, more generally because this is how we live, namely as a community of reasoners that has a past. The normative importance of past reasoning is not the same as that of current reasoning. We confront past reasoning as an artifact; not so our current reasoning, which is dynamic, allowing for mutual correction and response.