PHIL 2120: Introduction to Ethics
Dr. Robert Lane
Lecture Notes: Friday September 3, 2010

 

[3.2.5.] The Argument from Better Outcomes.

 

RDR reasoning is morally justified for the following reason: better outcomes will result if people “restrict their reasoning” according to the specific role(s) that they occupy, rather than thinking about what they ought to do, all things considered.[1] Wasserstrom sums up this argument as follows: “whatever desirable moral outcomes appear to be blocked by the existence of and appeal to the role in question are in fact made more frequent and more likely by the role than by its absence.” (30)

 

 

Applied to parents: Children in general will be better cared for if parents think about their obligations as flowing from their roles as parents to their own children, rather than thinking about the interests of all the world’s children as being equally important. The idea is that we can attain a desired end, viz., that children be cared for to the greatest possible degree, if we all, as individuals, aim for another end, viz., taking better care of our own children than we do of children in general.

 

Applied to lawyers: “[I]f lawyers do pursue the interests of their clients in the relatively single-minded way specified by the role of lawyer, the legal system will end up doing more justice to more persons than would be the case under any less stringent and focused mode of moral deliberation.” (30, emphasis added)

·         This indicates that the better outcomes referred to by this argument are not limited to happiness and well-being. Justice is included, as well. So this is not a strictly consequentialist argument.

 

Applied to generals: This argument won’t work for generals. It is unclear “that the outcomes will necessarily be the best ones overall if generals and leaders always attend only to the best interests of their soldiers or their citizens.” It would have a greater chance at working “if it were plausible to think that the interests of all persons in the world are better assured morally if there are armed nation-states devoted to the pursuit of their own interests.” (30) [2]

 

 

[3.2.6.] The Argument from Agreements.

 

At least some role-based obligations are created by the agreements made by individuals who occupy those roles.

 

This is because, by entering into such an agreement, you cause the other party to the agreement to have expectations about how you will subsequently behave.

 

Further, those expectations ground a legitimate moral claim against you that you actually behave that way:

 

Agreements ... create expectations of the sort that are important to take into account and adhere to. Very often persons enter into agreements in which they procure the assent of another to prefer them and their interests in a way that could not be appropriate but for the agreement. Having secured that agreement, they have a strong moral claim that these expectations now be honored and respected. (31)

 

Applied to parents: There is no agreement between parent and child that the parent will care for the child; so this defense will not work for that example.

 

Applied to lawyers: Here the argument might work, since the relationship between lawyer and client is based on an agreement that the former will defend the interests of the latter:

 

... if a prospective client and a lawyer have entered into an attorney-client relationship, the client thereby understands the lawyer to have agreed to seek to promote that client’s interests. The justification for the lawyer doing so is that the client expects this, and wholly reasonably so because the expectation rests upon a prior agreement and a reasonable understanding of the nature of that agreement. (31)

 

According to Wasserstrom, this does not imply that the lawyer/client agreement obligates the lawyer to do anything whatsoever in defense of her client, and in particular it does not imply that the lawyer is professionally obligated to do anything “morally objectionable” for the client.[3]

 

 

[3.2.7.] The Argument from Existing Expectations.

 

One is sometimes obligated to behave in certain role-related ways, because if one does not, it is not reasonable to expect others to behave in their own role-defined ways.

 

In other words, it is sometimes the case that others already expect you to act according to the role you occupy, and without that expectation, they themselves would not behave according to their own roles.

 

Unless individuals believe their interests will be attended to in certain ways through the role-defined actions of others, they cannot ... reasonably be expected to behave as their roles require. ... [T]o secure certain role-defined behavior it is desirable, if not necessary, that related behavior also be determined and assessed from a role-restricted perspective. (31-32)

 

Applied to generals: If a general does not act so as to promote the interests of his troops above those of foreign troops (and foreign civilians), then his troops cannot reasonably be expected to take the risks they need to take in order to perform their functions. Soldiers expect (apart from any implicit or explicit agreement) that their generals will take their interests seriously into account when formulating military strategies. This expectation grounds a general’s obligation to do just that.

 

Applied to lawyers: Apart from any specific agreement between a lawyer and her client, the very existence of the adversary system of criminal justice creates the expectation on the part of the accused that the person who represents him will in fact defend his interests. This expectation exists independently of any specific agreement reached between the lawyer and her client.

 

Applied to parents:

 

The existence of a system of role-defined behavior can … create expectations relevant to the behavior of others not directly affected by the existence of the role. These other persons also will come to expect that the role-defined behavior will continue, and this may give them license to act on these expectations rather than from a more universal moral perspective. That is to say, if a system is in place in which a parent’s role is to prefer the interests of his or her own children over those of children generally, then all persons can and will reasonably assume that parents are attending to the interests of their own children and, hence, that others need not attend to the interest of children who are not their own. (32)

 

 

[3.2.8.] Summing Up the Three Arguments.

 

Wasserstrom sums up the three arguments…

 

 

as follows:

 

[These arguments] dissolve[e] the … incompatibility or tension between roles and universalistic demands of morality. According to these arguments, roles are not exempt from the dictates of these moral demands; instead, they are the concrete instantiations of what these demands require and justify. (33)

 

In other words, RDR is supported by or based on MR. MR requires that sometimes human beings engage in RDR. So there is no conflict between the two forms of reasoning.

 

 

[3.2.9.] Another Type of Defense.

 

Wasserstrom now considers two objections to the distinction he first made between those two sorts of reasoning (RDR and MR).

 

If these objections work, they will show that there really is no tension between RDR and MR, because there is no clear distinction between those types of reasoning to begin with.

 

Objection 1: The point of this objection seems to be that ordinary life is suffused with RDR. “[M]orality simpliciter is much more role-specific and much less role-neutral than I supposed it to be.” (33)

·         Part of what it means to be a friend is to prefer the interests of one’s friends over those of other people.

·         Part of what it means to be a parent is to prefer the interests of one’s children over those of other children.

It is not as if people outside the professions (including law and medicine) do not play roles that have moral implications. We all play roles (parent, child, friend, sibling, etc.) that bring with them moral obligations. So to attempt to separate role-defined obligations from general moral obligations is simply artificial.[4]

 

Objection 2: “[M]orality simpliciter [i.e., morality considered simply, i.e., morality itself] is much more role-specific and much less role-neutral” than Wasserstrom’s examples have assumed.

·         In the parent/child example, Wasserstrom described the interests of a person’s children and those of strange children as if they could actually be compared with each other. But in fact they cannot be compared; they are completely different. One has a general moral duty to prefer the interests of one’s own children over the interests of other people’s children—this is in fact what MR requires.

·         In the general/soldiers example, he described the interests of the soldiers as if they are comparable to those of enemy soldiers. But (says this objection) they are not. The interests of enemy soldiers are different because those soldiers are trying to kill the general’s soldiers. So there is nothing morally questionable about the general acting to defend the interests of his soldiers in comparison to those of the enemy; in fact, this is what MR ought to lead him to do.

 

 

[3.2.10.] Wasserstrom’s Responses to the Arguments and Objections.

 

Wasserstrom’s initial claim (as he now restates it, in section III of the article) was “that there is something perplexing and troublesome about moral reasoning in which appeals to roles function in the way I described.” (34, emphasis added)

 

He has considered three arguments that acknowledge the distinction between RDR and MR and then seek to dispel the alleged tension between them and two objections to the RDR / MR distinction itself. And he acknowledges that these arguments and objections “go some appreciable distance in reducing or dissolving the initial worry.” (34)

 

Still, he has some “nagging dissatisfactions” with these arguments and objections…

 

 

[3.2.10.1.] First Response: Role-Defined Obligations are Not Absolute.

 

[A]lmost none of the arguments supported by appeals to roles justify favoring some interests over others no matter what, or without regard to the more universalistic moral considerations previously identified. Universalistic morality does not apply only when there are no roles. (34, emphasis added)

 

In other words, moral obligations will sometimes trump role-defined obligations. The role-defined obligation of a lawyer to defend her client is not absolute. It does not permit her to, e.g., bribe an opposing witness to keep him from testifying. The moral obligation not to bribe witnesses beats out the prima facie obligation to defend one’s client.

 

Not everything that will advance the client’s interests is justifiable. Even with the role, we are required to determine which interests of others may be neglected and which may not, in which ways, and for which reasons. So, what looked to be a rather simple matter is really a good deal more complicated. Even if role-restricted reasoning makes good moral sense, it is not at all clear exactly what, on moral grounds, the role and its redescription of moral outlook should come to. (34)

 

In sum, RDR can reveal real, genuine obligations. But those obligations do not always outweigh those revealed by more universalistic MR. So even in taking role-defined obligations seriously, we must still think about our more general obligations and not simply assume that the former will always outweigh the latter.

 

What’s more, the burden of proof rests with those who believe that role-defined obligations outweigh the general moral obligation to consider all people’s interests equally. So the burden of proof rests with lawyers (and generals; and parents?) to show that it is sometimes acceptable to place the interests of their clients (soldiers; children?) above those of people in general. [Wasserstrom emphasized this point in his earlier article as well.]

 

 

[3.2.10.2.] Second Response: Against Expectations.

 

Here Wasserstrom responds directly to the second and third arguments he considered earlier, that expectations (either those created by explicit agreements, or those already existing due to the existence of some social institution) create the role-defined obligations to behave in certain ways.

 

The problem with these arguments is that “they do not justify very much…

 

They are certainly not decisive arguments against changing the nature of the roles and thereby changing the character of the expectations that the existence of the roles gave rise to in the first place. They may provide the basis for an argument for giving persons warning that things are going to be different in the future and for making changes gradually rather than suddenly. But that things have been done in a certain way can never by itself constitute an adequate justification for the rightness of continuing permanently to do them in the same way. (34-35, emphasis added)

 

In other words, “even fully legitimate expectation[s]” by themselves do not settle all “the relevant moral issues.” (35)

 

Consider the expectation of the defendant that his lawyer will mount the strongest possible defense. This expectation might stem from an explicit agreement between the defendant and the client, and that relationship might be constituted in part by the trust the defendant has in the lawyer.

 

Wasserstrom’s point is that even if those expectations are legitimate, and even if in general trust is morally valuable, it does not follow that this particular sort of relationship and the specific kind of trust it involves are themselves morally valuable or that they are worth preserving.

 

So arguments based on expectations ignore these questions:

1.      “Should a certain role exist?”

2.      “Given that a certain role exists, should the occupant of that role do what the role, as so constituted, requires? Should the occupant reason in accordance with the role-restrictions or not?” (35)[5]

 

What’s more, to answer those two questions, one must engage in MR rather than relying on RDR. Role-defined reasoning, taken on its own, cannot justify itself.

 

 

[3.2.10.3.] Third Response: The Malleability of Roles.

 

Although Wasserstrom indicates that this criticism weighs against “many if not most of the arguments in defense of role-defined behavior,” it seems most directly relevant to the Argument from Better Outcomes.

 

The response is this: the arguments assume without justification that “unless the role in question is preserved in just the form it has had to date, the results will clearly be worse, less justifiable, overall.” (36)

 

But Wasserstrom doubts that this is the case: “Roles seem to me to be far more malleable and far less necessarily fixed than the discussions and defenses suggest.” (36)[6]

 

So the defender of RDR needs to provide reasons for believing that the relevant institution (the law, parenthood, the military, etc.), as it now stands, does in fact result in the best outcomes and that outcomes cannot be improved by somehow changing the relevant institution and its constituent roles.

 

Applied to parents: Even if the best way of attending to the interests of children generally is for parents to look after their own children, that might not justify parents paying attention only to their own children’s interests. It might be possible to strike a better balance between the care parents give to their own children and that which they give to others. (This echoes a point Wasserstrom made in his earlier article.)

 

Applied to lawyers: Over the last 40 years, there has been a significant change in the way the role of trial lawyers within the adversary system is conceived. Previously lawyers took it to be their responsibility to hide as much about their case as possible from opposing counsel. Now “almost everything that one side plans to try to prove in a case and how it intends to do so is fully available to the other side well before the trial commences.” (36) Further changes in how we think about the role of lawyers might even improve the outcomes of our legal system to an even greater degree.

 

 

Stopping point for Friday September 3. For next time (Wednesday September 8), begin reading Monroe Freedman, “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions,” pp.1469-74, available via the course reserves page of the Ingram Library website.

 



[1] This is clearly a consequentialist argument. But again, Wasserstrom is not limiting the desirable outcomes he has in mind to utility. This is made clear when he considers how this argument might be applied to lawyers, as described below.

 

[2] Wasserstrom describes a similar argument that he says might work for the example of military officers, and it is quite similar to the argument that he considered in “Lawyers as Professionals: Some Moral Issues”; see lecture notes 3.1.5., Monday August 30.

[3] This argument is quite similar to that given by Monroe Freedman, according to whom a criminal defense attorney can adequately defend her client only if she strikes something like an agreement with him according to which she will continue to defend him even if he reveals damaging information to her.

[4] Wasserstrom himself does not state the objection this clearly, but I think this is what he has in mind.

[5] Although Wasserstrom does not mention Monroe Freedman, whose article you will begin reading for next time, his criticisms can easily be read as applying to Freedman’s argument. The point is that Freedman is simply assuming without argument that the role of the criminal defense attorney is itself morally permissible. You might agree with Freedman that, given the existence of that role, the attorney is obligated to gain the trust of her client, and thus obligated to be dishonest with the court in the ways that Freedman describes. But one might still maintain that the role of criminal defense attorney (as it currently exists) is itself somehow morally flawed.

 

[6] See his example of how the conception of the adversary system and of the role of lawyers within it has changed over the last several decades. (36)




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