[11.2.] Wasserstrom on Role-Defined Reasoning.

 

Our second reading by Wasserstrom is his 1984 article “Roles and Morality.”[1]

 

Here Wasserstrom continues to address the differences between what is morally appropriate behavior for human beings in general, qua moral agents, and what is appropriate behavior for people qua occupants of certain roles. In particular, he is examining why these differences are potentially morally problematic.

 

In this later article, he tends to refer to role-defined reasoning rather than to role-defined behavior.

 

 

[11.2.1.] Two Ways of Reasoning about Obligations.

 

Wasserstrom describes two ways of reasoning about what one should and should not do:

 

role-defined reasoning [RDR]: “places weight upon the role that the person occupies and locates concerns about how one ought to behave within a context of what is required, expected, or otherwise appropriate of persons occupying that role.” (25-26)

 

moral reasoning [MR]: this is more universalistic and less particularistic than RDR, in that it “has to do with an overriding concern for the welfare or happiness, broadly understood, of individual persons.” (28)[2]

 

By calling the second sort of reasoning “moral,” Wasserstrom does not mean to imply that RDR is immoral or that it is bad in any other way. One of the aims of this article is to examine whether or not specific instances of RDR are morally permissible.

 

 

[11.2.2.] Role-Defined Reasoning.

 

Wasserstrom considers a number of different examples of RDR:

 

1.      parents: “If parents were ever pressed to justify, as they seldom are, why it is right that they do and should prefer the interests of their children over those of any or all of the other children in the world, it would surely be on the ground that their role as the parents of these children requires (or at a minimum allows) them to prefer their welfare and their interests over those of all other children.” (26) [Wasserstrom used this same example in his earlier article.]

 

2.      lawyers: “It is thought to be certainly permissible and probably obligatory ... for the lawyer to do any number of things that otherwise might very well be morally criticizable.” (27) There are two sorts of case that illustrate this:

 

(A) Cases having to do with “indifference to the client’s ends.”

·         [see the landlord example, p.27]

·         [see the example of setting aside one’s beliefs about a criminal defendant’s guilt or innocence, p.27]

 

(B) Cases having “to do with the means employed by the lawyer” to achieve the client’s ends.

·         Defending a man accused of rape and cross-examining his accuser about her sexual history, even though you know it will be degrading and humiliating to her and realize that ultimately it has no relevance to whether the rape occurred.

 

3.      military officers (e.g., a general) strategizing in wartime [see p.27][3]

 

 

[11.2.3.] Moral Reasoning.

 

RDR seems to be in tension with the type of reasoning that we typically think about as moral.

 

This “more universal, less particularistic” way of reasoning involves the following ideas (28-29, emphases added):

·         a “concern for individual autonomy, for the importance of making available to each person the real opportunity to fashion a life that he or she will find genuinely satisfying.”

·         “the respect that is due to all persons because they are persons, and the ... wrongness in viewing or using members of the moral community solely as means to some further end, as things to be used as one might utilize artifacts or other objects.”

·         “each person who is affected [by one’s actions] is to count equally, as one ... [there is] a strong presumption of equality among all the members of the moral community.”[4]

 

In sum, MR requires that we

 

regard each person’s interests and fundamental concerns and needs as presumptively of the same worth and importance. When the needs, interests, and concerns are of the same kind, there is presumptively, if not conclusively, no moral reason to prefer one person’s interests over those of any others. When the individuals are all of the same kind, when they are all persons, there is presumptively, if not conclusively, no moral reason to accord them different status within the moral community. (29, emphasis added)

 

 

[11.2.4.] Benefits of Role-Defined Reasoning.

 

There are at least two benefits that RDR has over MR:

 

·         BENEFIT 1: simplicity: thinking in terms of the role one occupies provides more specific guidelines for what one ought to do and thus makes it easier to know what one’s obligations are.

 

·         BENEFIT 2: a low risk that one will rationalize to benefit oneself: “the appeal to one’s role seldom, if ever, creates the kind of moral conflict that we so often worry about, namely, the conflict between self-interest and ... doing the right thing.” (29)[5]

 

These benefits can help explain why so many people are attracted to role-defined reasoning.

 

They may also serve to justify this sort of reasoning. [This is especially true of the second benefit: if RDR does minimize the probability that an individual who uses it will behave self-interestedly, then that counts as a moral reason in its favor.]

 

But they only cannot justify RDR absolutely. It may turn out that, even though role-defined reasoning is justified to some degree, it is not completely justified and on occasion still turns out to be wrong.

 

 

[11.2.5.] A Problem with RDR, and Three Defenses.

 

PROBLEM: There is a tension between RDR and MR, because the former involves treating the interests and well-being of some people (your own children, your clients, your soldiers) as more important than those of others.

 

If there really is this conflict between the two sorts of reasoning, then it seems that the professional obligations of a lawyer demand that she behave in conflict with what moral reasoning would require.

 

Wasserstrom considers three possible ways to justify role-defined reasoning and thereby resolve the tension between it and moral reasoning.

 

 

[11.2.5.1.] The Argument from Better Outcomes.

 

Morally 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.[6]

 

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)

 

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) [7]

 

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)

 

 

[11.2.5.2.] 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.[8]

 

 

[11.2.5.3.] 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: 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.

 

 

[11.2.6.] Objections to Wasserstrom’s Distinction.

 

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 shot-through 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.[9]

 

Objection 2: Wasserstrom has mis-described the cases to which he has appealed in order to illustrate the distinction.

·         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 duty to take care of one’s own children but no duty at all to take care of others’ children.

·         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 questionable about the general acting to defend the interests of his soldiers in comparison to those of the enemy.

 

 

[11.2.7.] 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 meant to dispel this view and two objections to the RDR / MR distinction upon which the view is based. 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…

 

 

[11.2.6.1.] 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.

 

 

[11.2.6.2.] 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)[10]

 

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

 

 

[11.2.6.3.] 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 argument assumes 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)[11]

 

So the defender of role-defined obligations needs to provide reasons for believing that the relevant institution, 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 exclusively to their own children’s interests and that it might be possible to strike a better balance between the care parents give to their own children and that they give to others. (This echoes a point Wasserstrom made in his earlier article.)

 

 

 

Stopping point for Wednesday April 22. For next time, begin reading the article by Pepper (secs. I and II, pp.613-28). To access this article, use the “Journal Locator” on the Library website: http://www.westga.edu/~library/cgi-bin/libal.cgi. Search for American Bar Foundation Research Journal and then find 1986, volume 11, issue 4, start page 613.