Slavery, forced marriage and unjust laws

Slavery is the ownership of one person by another. Since a person no more owns another than a thief owns the purloined goods, there has never been any slavery. But of course there have been institutions thought to be slavery: institutions in which a person was thought to be the property of another. These were not institutions of slavery in the above strict sense but forms of unjust imprisonment, kidnapping, etc.

This seems to be merely a point about words, and a mistaken one at that. “Of course, Alexander II ended serfdom in Russia while Lincoln ended slavery in the US. Words mean what they are used to mean, and to dispute historical claims like these is to be like the fusty grammarian who claims that ‘It’s me’ is bad English.”

I agree that the question of words is unimportant. But here is what is important. Institutions are defined in large part by their norms. It is a defining feature of the norms of slavery (and, with some differences, of serfdom) that one person has property-style rights over another who has onerous obligations corresponding to these rights. But in fact, nobody has such rights over another, and the supposed obligations do not obtain. The institution that the “masters” saw themselves as a part of did not in fact exist, because the rights and obligations that they took to be integral to the institution did not, and could not, in fact exist.

We can use the term “slavery” (and cognates in other languages) for that non-existent institution, just as we use the term “phlogiston” for the substance that chemists mistakenly believed in before oxygen was discovered.

But we could also use distinguish and use two terms. Maybe slavery_h is the historical form of social organization that actually (and deplorably) existed and slavery_n is the normative institution that the masters_h (and maybe some of the slaves_h, as well) incorrectly thought to exist and thought to be coextensive with slavery_h.

Again, the words don’t matter, but it matters that there was a morally condemnable attempt to create a certain social institution which attempt failed because the norms that were attempted to be instituted were incapable of institution.

This is a pattern we find in many other cases. There is no such thing as a forced marriage, since the norms of love and sexuality that define marriage do not come into existence apart from the free consent of the parties. But of course over the course of history there have been morally condemnable attempts to force people—especially women—into the institution of marriage. These attempts always failed, and what the victims were forced into was a different institution, one subjecting them to such injustices as kidnapping, unjust imprisonment, rape, etc.

Thomas Aquinas, similarly, holds that there are no unjust laws. Of course, legislators may attempt to enact laws that would be unjust (or they may simply be exercising power and not even trying to legislate). But when they do so, they fail to enact laws. What they enact are mere demands masquarading as laws (philosophical anarchists think all “laws” are like that). Again, the question of words is unimportant, but what is important is the pattern: the legislator is deplorably attempting to create a social institution—a law—and failing to do so, but instead creating another institution.

The particular cases of this pattern are interesting, and so is the pattern itself. A central part of the pattern is an attempt to create an institution (or an instance of an institution) that misfires, and instead another institution is created that is widely but mistakenly thought to be the one that was the target of the attempt. But the cases of slavery, forced marriage and unjust laws also share another feature that not all the cases of misfiring do. For instance, suppose due to an honest mistake in the counting of ballots, there is a mistake as to who the mayor of a town is. The false mayor then attempts to legislate something quite just. The attempt fails, because the false mayor lacks the standing to legislate. But there need be nothing morally deplorable here, as there is in the slavery, forced marriage and unjust law cases.

Moreover, the three cases I started with are not just morally deplorable, but there seems to be an important connection between moral evil and performative misfire. Slavery_h is morally horrific, but slavery_n would be even worse, as the slaves_n would be under genuine obligations to do the enforced labor required of them and not to escape. This would, as it were, make morality itself complicit with the master, and the properly formed conscience of the slave into a whip in the master’s hand. And the same holds in the other two cases: morality itself would be a tool of oppression.

There are, alas, times when morality is a tool of oppression. The duties that exist between relatives are frequently exploited by repressive regimes as a means of social control: If you are an Uyghur or Tibetan defecting to a free country and speaking out against the Chinese regime, your relatives back home will suffer, and this restricts your activity because of the duties you have to your relatives. But the kinds of cases where the wicked use morality as a lever against the righteous seem different and less direct from what would be the case if slavery, forced marriage and unjust laws had the normative force that they pretend to. It is a mere coincidental effect of duties to family when these duties make it morally impossible or difficult to stand up to a wicked regime. But it would be of the very nature of the norms induced by slavery, forced marriage and unjust laws—if these norms really came into existence—that they would oppress.

This still leaves an interesting puzzle, which different moral theories will answer differently: Why is it the case that morality does not innately oppress?

Objection: Maybe slavery_h does create norms, but not moral norms.

Response: I myself don’t think there are any non-moral norms. But in any case slavery_h does not create any kind of obligation on the slave to obey the master, whether moral or not, except in some, but not all, cases a prudential one.

Practice-internal goods

I’m hereby instituting a game: the breathing game. My score in the game ranges from 0 to 10. I get 0 points if I hold my breath for a minute. Otherwise, my score equals the number of breaths I took during the minute, up to ten (if I took more than eight breaths, my score is still ten).

It is good to do well at games. And I am really good at the breathing game, as are all other healthy people. For every game, there is a practice-internal good of victory. Thus, by choosing to play the breathing game, my life is enriched by a new practice-internal good, the good of winning the breathing game over and over. And of course there is an immense practice-external good at stake: this is a game where victory is life, as the Jem’Hadar say.

There is something absurd about the idea that I have significantly enhanced my life simply by deciding to be a player of the breathing game and thus attaining victory about 1440 times a day.

It is widely thought that there can be significant practice-internal goods in practices we institute. The breathing game’s practice-internal good of victory is not significant. Why not? Maybe because the game hasn’t caught on: I am the only one playing it. (Everybody is else is just breathing.) But if the good of victory would become significant were the game to catch on, then we have good consequentialist reason to promote the breathing game as widely as we can, so that as many people as possible could get a significant good 1440 times a day, thereby brighting up many drab lives. But that’s silly. It’s not that easy to improve the lot of humankind.

An intuitive thing to say about the breathing game is that it’s not very challenging. Healthy people can win without even trying. It’s a lot harder to get a score of 0 than a score of 10. The lack of challenge certainly makes the game less fun. But fun is a practice-external good. Does the lack of challenge make the practice-internal good less?

Maybe, but I am dubious. Challenge really seems rather external, while practice-internal goods are supposed to be instituted. Maybe, though, the story is this. When I institute a game, I am filling out a template provided by a broader social practice, the practing of playing games, and the broader social practice includes a rule that says that unchallenging victory is not worth much. I can’t override that rule while still counting as instituting a game.

That may be. But if the larger social practice, the one of games in general, is itself one that we have instituted, then we have good moral reason to institute another social practice, a practice of shgames. The practice of shgames is just like the practice of games, except that the practice-internal good of victory is stipulated as being a great good even when victory comes easily. We have very good reason to institute the practice of shgames, as this would allow everybody to play the breathing shgame (which has the same rules as the breathing game), and thus enrich their lives by 1440 valuable victories a day.

That’s absurd, too.

Here’s where the line of thought is leading me: We have significant limits on our normative power to set the value of the practice-internal goods of the practices we create. In particular, the practice-internal goods that are entirely our creation are only of little value—like the value of victory in a game.

One might think that this is just an artifact of games and similar practices, which are not very significant practices. Perhaps in our political practices, we can institute great practice-internal goods. I don’t think so. The state can bestow a title on everyone who scores a perfect ten in the breathing game, but the state cannot by mere stipulation make that title have great value of a practice-internal sort. Otherwise, it’s too easy to create value. (One may think that the issues here are related to why the state can’t just print more money to create wealth. But I think this is quite different: the reason the state can’t just print more money to create wealth is that wealth is defined partly in terms of practice-external goods, and mere printing doesn’t affect those. But purely internal goods can be broadcast widely.)

I am not claiming that there are no great practice-internal goods. There are great internal goods in marriage, for instance. But here is my hypothesis: wherever there are great practice-internal goods, these goods derive their value from a practice we do not instituted. For instance, if there are great internal goods in marriage, that is because either we have not institute marriage or because marriage is itself the filling out of a template provided by a broader practice that we have not instituted (I think the former is the case).

If we could institute practices with great practice-internal value, we should, just for the sake of the practice-internal value. But that is wrong-headed. In fact, I think that when we institute practices, it is for the sake of goods that we are not instituting. We get the practice-internal goods, then, but they are just icing on the cake, and not a good icing even.

Perhaps I am misunderstanding practice-internal goods, though. Maybe they have the following property: they provide reasons to pursue them for those who participate in the practice, but they do not provide any reasons for those who do not participate in the practice. On this picture, one could have a great practice-internal good, one that provides very significant reasons, but it would provide no reason at all to a non-participant, and hence it would provide no reason to institute the practice. This seems wrongheaded. Only real goods provide real reasons. If practice-internal goods were to provide real reasons to the participants, they would have to be real goods. But if something—say, the institution of a practice—would result in the existence of real goods to people, that does provide a reason to bring about the something. That’s part of what is true in consequentialism. Moreover, even if one removes the absurdity of thinking that there is reason to institute the breathing game, one does not remove the absurdity of thinking that people who play the breathing game are racking up much good.

Marriage as a natural kind

Thesis: Marriage as a natural kind of relationships is a better theory than marriage as an institution defined by socially instituted rights and responsibilities.

Argument 1: On the institution view, we have to say that people in most other cultures aren't married since they don't have the same socially instituted rights and responsibilities. That's bad, since they say they're married when they learn English. The natural kind view holds, instead, that people in different cultures are referring to the same kind of relationship, but may get wrong what is and is not a part of the relationship.

We do not automatically accept educational credentials from other cultures. Thus, being medically educated in France does not automatically make one count as medically educated in the U.S. And being medically educated in 5th century France would make one not one whit medically educated in 21st century France (imagine a 5th century doctor who travels in time). In other words, being medically educated is always indexed to a set of standards. But we don't think of marriage in this way, with a few notable exceptions, such as polygamy or same-sex marriage. Getting married in India is sufficient for being married in France. Why? If one thinks of getting married as assenting to a set of rights and responsibilities, then getting married in India shouldn't be sufficient for being married in France, or vice versa.

Argument 2: The natural kind view explains how we can individually and as a society discover new rights and responsibilities involved in marriage. The institution view leads either to constant abolishment of the old institution and replacement with a new one, or to a stale conservatism. We learn about the rights and responsibilities of marriage experientially and not just a priori or by poring over legal tomes. That is how it is with a natural kind like water.

Argument 3: Suppose we see someone from a patriarchal culture who is failing to care for his sick wife (or at least someone he calls a wife). We might well say: "It's your duty as a husband to take care of her." On the institution view, he can respond: "No, it isn't. It would be my duty to take care of her if I were her husband-per-American-rules, but I am her husband-per-Patriland-rules, and in Patriland wives take care of their husbands and husbands do not need to take care of their wives." But on the natural kind view, we can say: "You tried to marry her, and marriage does require taking care of a sick spouse, regardless of who is of what sex. So either you succeeded at marrying, in which case you have this responsibility, or you failed at marrying, in which case you don't have the rights you thought you gained." On the institution view all we can say is: "You're in a corrupt and sexist institution, and you should divorce to stop supporting it. By the way, you're right that you have no role duty to take care of her."

Argument 4a (for conservatives): If you take the institution view, you play into Wedgwood's argument for same-sex "marriage".

Argument 4b (for liberals): If you take the institution view, you cannot advocate same-sex marriage, but only same-sex "marriage". You have to adopt the very revisionery position that marriage should be abolished, albeit replaced with something very much like it, namely marriage*, since marriage is defined by the social understanding, and that has included opposition of sexes. Moreover, such a view leads to unhappy consequences. Once we have replaced marriage with marriage*, we can't say that our grandparents are married*, only that they are married, and since marriage* is the only relationship available after the revision, you can't do what your grandparents did. Moreover, even allowing our grandparents to stay married is problematic if marriage is an unjust institution. So probably the state needs to dissolve their marriage, leaving it up to them whether to marry*. This is a politically untenable and unhappy view. A much better view is that marriage is a natural kind, and we were simply wrong in thinking marriage is only for people of the opposite sex. This (and Argument 3, too) is a species of the general point that relativistic theses run the danger of leading to stale conservatism.