Theory on framework issues

Wednesday, January 11, 2012

14.1 A habit theory of civic morality

The morality that primarily concerns legal theory is civic morality, the morality used to ground political argument. Even the possibility of politics can seem hard to understand without the existence of objective moral judgments. How can we agree on or even argue about fundamental policies without an external standard of correctness? The answer is twofold. First, we don’t necessarily agree or even argue. We assemble majorities or effective pluralities not necessarily underwritten by fundamental agreement. Second, when many citizens agree on the applicable morality, their convergence—much as judicial agreement obtains despite the absence of any theory of constitutional interpretation—is due to influences other than correspondence with an external standard. This essay will propose a mechanism responsible for a limited moral convergence.

The contrary view—that morality is real, moral facts true—probably arose with the universalistic religions. When religion began to wash up and its natural moral laws became uncompelling, the movement for legal codification partly filled the breach. A universalistic written law supported the illusion that political disagreement would be resolved under common moral premises.

The need for an illusory political morality survives in some small part because of the absence of challenge from an alternative theory of political morality. The main candidate explanation is common moral indoctrination within a culture, but indoctrination fails as a candidate for the source of moral agreement in politics because people do not automatically apply the morals they are taught, even if they believe them true. Consider Biblical morality and the extent to which people choose those teachings they find convenient and disregard the rest. Neither is self-interest an adequate explanation, since false consciousness is widespread, and the ways are limitless for a person to slice his self-interest in moral terms A third explanation, depth psychology, may explain why moral precepts are sometimes applied inaccurately, say, why a truth teller is thought a liar; but it doesn’t explain the terms on which moral judgments are made—why truth telling is or isn’t the criterion in the first place.

Since most of the time few lead lives centered on politics, the habit theory of explicit morality must use the moral habits important in citizens’ ordinary lives to explain the moralizing they apply to politics. Per 14.0, personal morality is a tool for creating and strengthening habits of forgoing narrow, short-term self-interest. Political morality usually favors those same habits useful in personal (nonpolitical) life. This practice doesn’t make for intelligent politics, since personal morals—being habits that serve quotidian needs—are often ill-adapted for politics. Some examples will be considered, but note that the direction of influence can reverse at those rare historical junctures where masses of people become deeply involved in politics.

Recently, social psychologists have studied the differing political morals of liberals and conservatives. Five bases for political reasoning have emerged: liberals focus on values of welfare (or harm avoidance) and fairness; conservatives weight those factors less and include values of loyalty, purity, and respect. Some clues about how these values emerge from ordinary life are provided by societies where the dominant values belong to the conservative cluster. In these traditional agrarian societies, respect and subordination figure large in most people’s lives. Although the demographic correlates of liberal and conservative political thinking haven’t been mapped out in modern societies, the habit theory predicts that political moralities are bolstered by different styles of life, which make one moral system or another personally adaptive. Geographical mobility, for instance, may make habits of loyalty less advantageous. The fact that conservatives tend to deride liberals and radicals as “rootless cosmopolitans” bears this out. Another possible connection is that rural areas require more concern with personal cleanliness; hence, habits of purity are stronger.

One of the weird developments in contemporary politics is the huge Tea Party movement within the middle class to reduce the federal deficit, a movement that hates President Obama, more than any reason, simply because he spent a lot of federal money trying to provide an economic stimulus and remove an economic obstacle. Although polls report that citizens are more concerned about jobs and the economy than the deficit, the sheer degree of concern with this technical question of macroeconomics remains staggering and bewildering in that austerity undercuts recovery. This isn’t a classic tax revolt: taxes haven’t been unusually high. What’s weird about caring so much about the deficit is that most economists think austerity will worsen the struggling economy. The concern with frugality is a reflex, a moral habit forged in the personal battle to control the family budget, extended to politics as a means of strengthening the personal moral habit by rehearsing it. According to my habit theory, you shouldn’t expect that the habit is suitable for government. It arises in personal life and extends to politics as another way, outside the personal realm, to practice the personal moral habit of frugality.

Another movement, Occupy Wall Street, espouses a morality emphasizing principles of fairness, which conflicts with today’s welfarist morality that’s dominant across the political spectrum—the total good of all, lacking regard for distribution. The Occupy Movement contends that the wealth and income distributions are unfair. A certain kind of middle class sector seems drawn to this movement; some have termed it the lower echelon of the elite. Many supporters are members of guild-like professional associations (but not trade unions). Guild membership fashions daily moral habits whose purpose is avoiding transgression of norms proscribing unfair competition. This contrasts with the habits useful to the business executive, whose life creates different ethical sensibilities. Functioning as a team and hierarchy at the same time, executives must show loyalty to superiors. They must resist appetites to sabotage their boss, and they must even take the rap for him. Steve Jobs is called a genius; John Ives, the real designer of popular Apple products, was only able to prosper because he suppressed his resentment that Jobs stole the credit. This businessman’s morality demands intensely loyal partisanship.

Citizens practice their personal moralities in the public sphere because practicing habits useful in their personal lives benefits them personally. But personal moral habits are maladaptive for politics, a reality most obvious when intelligent politics is most necessary. At some point, if the economy fails to recover, moralities adapted to politics will become ascendant—despite the maladaptiveness of political morality for personal life. Then, personal morality will necessarily suffer, as in the case of an intensely political British communist sect where it is said, “You can trust a comrade with your money or your life, but you can’t trust a comrade with your books or your wife.”

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SUPPLIER OF LEGAL THEORIES. Attorneys' ghostwriter of legal briefs and motion papers, serving all U.S. jurisdictions. Former Appellate/Law & Motion Attorney at large Los Angeles law firm; J.D. (University of Denver); American Jurisprudence Award in Contract Law; Ph.D. (Psychology); B.A. (The Johns Hopkins University). E-MAIL: Phone: 760.974.9279 Some other legal-brief writers research thoroughly and analyze penetratingly, but I bring another two merits. The first is succinctness. I spurn the unreadable verbosity and stupefying impertinence of ordinary briefs to perform feats of concision and uphold strict relevance to the issues. The second is high polish, achieved by allotting more time to each project than competitors afford. Succinct style and polished language — manifested in my legal-writing blog, Disputed Issues — reverse the common limitations besetting brief writers: lack of skill for concision and lack of time for perfection.