FAIRNESS AND IMPARTIALITY: THEIR SCOPE

This chapter considers a range of strategies for insulating partial

practices from any impartialist critique. Some aim to show that there are limits beyond which the moral writ does not run, where partiality is at individuals' discretion (section 2A). Others attempt to found obligations to be partial upon the putative conceptual priority attaching either to

individuals' altruistic emotions or to their conceptions of the good life, both of which are likely to give great weight to the welfare of the agents' own families or communities (section 2B).

I contend, however, that most of the arguments brought in support of either permission or obligations to be partial merely support indulgence of partiality. Only recourse to moral subjectivism secures permission to be partial: but we are unhappy with such latitudinarianism, which does little justice to our moral intuitions; rather we are driven to seek objective endorsement of our altruistic emotions and of our personal conceptions of the good. Yet once we seek objective endorsement, we lay ourselves open to impartialist assessment.

We will see that some value attaches to the satisfaction of our partialist inclinations to the extent that such satisfaction brings pleasure, and to the extent that pleasure is of value. However, to pursue such pleasures is an indulgence: once we take the moral step of evaluating our inclinations, we seem to be obliged (in the absence of other moral reasons for being partial), to train ourselves to take pleasure in being impartial.

2A________ Indulging Partiality

The arguments discussed in this section allege that applying impartial standards at the personal level is illegitimate, either because the resulting morality would be too demanding or because morality is taken to be indifferent to what one does in one's own time, or with one's own property.

Such arguments, if valid, would support a personal licence to be partial, though they could not establish obligations to be partial. This is the attitude of neutralist liberals like Rawls and Barry amongst political philosophers, who are concerned that the morality that underpins the institutions of the state should be impartial between competing

conceptions of the good. It is likewise the perspective of philosophers like Cottingham whose domain is personal morality and who are anxious to leave individuals discretion to establish their own priorities.

I will contend that their arguments show only that we should be indulgent of personal partiality; we recognise that morality is demanding, and do not judge harshly those who fail to live consistently by its teachings, but nonetheless judge that it would be better if they could. It will turn out that a genuine licence to be partial (in the sense that a disinterested action would be no more praiseworthy than one favouring a friend or relative) only exists in the degenerate (though not uncommon) case where there is uncertainty as to which is the optimal course from an impartial

perspective.

Nevertheless, a stricter demand for impartiality will be shown to apply at the political level in the sense that we can be more demanding (less indulgent) of those involved in a political process than of individuals acting in their own time.

1 The demandingness o f Im partialist m orality

One of the complaints commonly levelled against utilitarianism is that it is too demanding a code. It leaves no time for individuals to pursue their own projects; they must always check first whether there might be something they could do which would add more to the sum of human happiness. One result is that any inclination to do good to kith or kin must

be set aside in favour of an alternative action that is happiness maximising.

The problem is not limited to utilitarianism: any consequentialist doctrine will involve a duty to maximise the good; Kantians and other

non-consequentialists also generally accept a virtue or a duty of

beneficence which will make demands when other duties are not relevant, and, in the absence of argument to the contrary, this duty of beneficence will be impartial in form^^. As a result of discomfort with this intrusiveness of morality, a number of philosophers have sought to show that such impartial principles do not apply to all decisions in all contexts. Were such arguments successful, they would also help to exempt individuals from applying the criteria of fairness (as defined in Chapter One) in their practical reasoning in the personal domain.

Cottingham (1983) argues that acceptance of impartiality can be very demanding, forcing one "to give the same w eight to the interests of large numbers of starving Asians as I give to my own interests." To do so "would be to cut my living standard to the very bone, to reduce my life to one of little more than bare subsistence" (p.91). Cottingham addresses his argument explicitly ad hominem at the impartialist: how can you drink beer and give your child a toy when you know that there are people starving in Asia? Now such examples undercut the force of Cottingham's argument, for one is strongly minded to say that the impartialist is right.

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There are important problems associated with a consequentialist general duty of beneficence. These relate to problems of inter-personal comparisons of utility, and the difficulty in excluding unpleasant desires or preferences from the maximisation calculations. However, these are essentially problems of hard cases: in many cases we are able to tell that the course we are inclined to take will produce less welfare than some other course, and such calculations will often tell against the partialist. Thus, these problems cannot be used as a general escape from the duty of beneficence or the demands of impartialist morality

(although, as suggested below, p.59 et seq, the difficulty of the calculations does expand discretion in certain circumstances).

that one ought to give up the beer if one was at all confident that doing so would save a life (even in Asia!^^). This is an ideal to be aspired to, even if it is difficult to attain.

The demandingness of morality is less of a problem for deontologists than it is for consequentialists, for although most deontologists will

recognise a duty of beneficence which will apply all the time, it is open to them to distinguish between the exigency of different duties. Thus Kant himself distinguishes between perfect and imperfect duties. The latter include the duty of beneficence, and allow the agent discretion in the timing and the exact means by which the duties are fulfilled.

Such a distinction between duties allows a break point in our evaluation of our fellows between those who always fulfil their primary duties and occasionally fulfil their imperfect duties, and the heroes and saints who bend their every action to the dictates of duty. Scope is created for the individual to perform morally indifferent actions without attracting censure, so long as primary duties are performed always, and imperfect duties regularly (cf. Baron (1987)). On this model the evaluation of both sinners and saints will nonetheless be with respect to their fulfilment of imperfect duties which are impartial in form. So the partialist case is not advanced.

One might argue that if the individual has discretion over the fulfilment of the imperfect duties, she must be able to bias that fulfilment towards kith and kin. If so, she will be fulfilling his duty of beneficence by favouring her sister over the stranger.

This would be an example of legitimate partiality, but the partiality would be no part of what made the beneficent action good. To the contrary, if she was in a position to help the stranger more at no extra cost, then she

Peter Unger (1996), in his essay Living High and Letting Die, makes a powerful case for giving equal consideration to the claims of the desperate irrespective of distance.

will be judged less beneficent than she might have been. She may not be criticised for this, but the measure of praise meted out will be less than it would have been had she acted impartially. Impartiality would remain the ideal.

For the consequentialist, it is less easy to find a break-point between the renegade and the saint. If every action is to be based on the

maximisation of the good, how is one to know when one has done

enough, when one is at liberty to devote time to oneself without censure? But the difficulty should not be overstated. Although it is difficult to form rules to guide the behaviour of a consequentialist who wishes to be rated an ordinary decent chap (doing his duty and no more), it is not in practice very difficult to distinguish such a person (who will maximise occasionally and/or when the demands of the calculus are particularly powerful, blatant or emotionally sympathetic), both from the saint (who will take pains to maximise the good almost all the time), and from the rascal who disregards the interests of the general good invariably^"^.

There is thus no reason to believe that even the most demanding of moralities condemns us all as sinners for our partiality - the question is only whether morality always dictates an ideal impartial course of action or not. And for both the consequentialist and the deontologist there is in principle always a best thing to do, and one that apparently makes no allowance for partial preferences; there is no theoretical limit to the intrusiveness of morality.

Thomson (1997) adopts the simple expedient of defining moral requirements in terms of "the vices": we are only required to avoid being unjust, cruel, or mean, even where it would be better to be just, kind or generous. Given the costs involved, the latter behaviour would be supererogatory.

Nevertheless, considerations of the demandingness of morality do suggest tolerance of a degree of partiality at the personal level. This would support an emasculated version of (P'), but certainly not (P') itself:

(Pa) People are entitled without censure to be loyal to or to discriminate in favour of members of a group, whether family, community or state, even when such discrimination neither serves an end nor fulfils an obligation that can be stated without reference to the identity of group members, or their particular characteristics; but this entitlement applies only in circumstances where the alternative impartial course would be little better.

Partial action (in the appropriate circumstances) will not justify censure, but impartial action, as supererogatory, would always merit praise.

This principle of indulgence will accord much less latitude to the state and its officers than it does to individuals acting on their own account.

Our tolerance of states' common discrimination in favour of their own citizens may be by way of an indulgence of the prejudices of the populace. One can envisage such prejudices being weakened to the point that we would no longer tolerate partiality explicitly embodied in states' laws, though we would still be indulgent of loyalty to kith and kin on the part of individuals.

More straightforwardly, we may well demand higher standards of officers of the state acting in their official capacity than we do of other individuals (though the severity of such standards, whether they tolerate police officers overlooking the crimes of their nephews or merely civil servants securing job interviews for their acquaintances, seems to vary with time and place.)

ii Partiality may Rightly be Lawful without being Moral

That there are partial practices that we treat indulgently does not establish a theoretical limit to the intrusiveness of morality or of the principle of impartiality. A fortiori the existence of partial practices which we do not criminalise does not prove that those practices are morally optimal. Yet, conflation of these attitudes (approbation, indulgence, legal tolerance) has led some to conclude from our unwillingness to outlaw or to condemn classes of partial actions, that they are beyond the reach of morality.

Barry (1995) emphasises repeatedly that the impartiality that is embodied in his theory of "justice as impartiality" is a second order

impartiality, by which he means that it is one that operates only at the level at which a society agrees the institutional and legal framework. Unlike first order impartiality, second order impartiality does not requires individuals to operate impartially in their day to day lives.

Barry argues that impartial political philosophies, utilitarian and Kantian ethics all respect impartiality at the political level but that all can leave discretion for the individual - to stop short of first order impartiality. Some of the arguments he advances adduce other ethical considerations for allowing individuals to make choices that do not grant equal

consideration to each competing interest (e.g. that there are good reasons for allowing or encouraging someone to favour his wife when rescuing people from a fire, either because encouraging such a sentiment will be utility maximising or failure to do so would be inconsistent with the nature of his relationship with his wife). These arguments will be considered below (sections 2B and Chapter Three). They are not really arguments for personal discretion; rather they suggest that there is some other duty or consideration that in the circumstances overrides the obligation of impartiality. (This is a distinction that Barry passes over.)

However, Barry also makes the more general claim that a space should be left for personal discretion:

"...once someone has been assigned something as his legitimate property, he is not normally to be held accountable under the rules of justice (whether legal or moral in form) for the use that he makes of it. It

can be consumed by him, given to somebody else, exchanged for something else of value ... or destroyed.

"What William Godwin called - pejoratively - 'the magic in the pronoun "my"' can be explained ... by saying that life goes better if what I do with my toothbrush is my business... I should not be under any obligation to ask myself whether somebody else could make out a better case for using my toothbrush than I can, on the basis of impersonally applicable criteria... The point of a system of private property in personal possession is precisely to exclude that.

"... All of us have only a finite amount of time, attention, care and affection to devote to other people... and life would scarcely be worth living if we could not decide for ourselves - once we had met our social obligations - on whom these should be bestowed." (Barry 1995,

section 33)

Barry does not wish to argue that there are never circumstances in which one should not make one's property available to others, nor even that choices of personal friends might not sometimes lead to bad

consequences. ("This is not to say that an occasion might not arise where the right thing to do was to lend someone my toothbrush."). Yet this is surely an admission that morality does hold sway at the personal level. Once that is accepted, the extent of need in the world leads one to the conclusion that every private use of time in principle needs justification against the alternative uses that one could make of time and resources. It may be morally indifferent which of two television programmes I watch;

but is it morally indifferent if I spend the time watching television or working to alleviate poverty?

Of course, as I emphasised in the previous section, we might not wish to condemn someone for spending more time than strictly necessary in relaxation. The force of Barry's argument trades on the implicit

construction of a straw opponent who would condemn or even outlaw such an activity. The references to it being "my business" what I do with my property, and to it being "for us to decide" where we bestow our

affections, imply that Barry's opponent would have someone punished for failing to be maximally sensitive to competing demands upon her time or property. Yet no first order impartialist is suggesting that a court should intervene in such cases, or even that failure to share should generally be the subject of social sanction. What they might powerfully argue however is that ceteris paribus it would be better to be sensitive to others' claims on one's time and resources.

Barry's argument that there should be personal discretion "once social obligations had been met" is based upon a Scanlonian assessment of the principle. Scanlon argues that

"An act is wrong if its performance under the circumstances would be disallowed by any system of rules for the general regulation of

behaviour which no one could reasonably reject as a basis for

informed unforced general agreement." (T.M.Scanlon, "Levels of Moral Thinking" in Senor and Potion Eds, Hare and Critics, 1988, quoted in Barry (1995), section 11)

It is true that Barry wishes to apply the Scanlonian approach only to rules of justice rather than to wider morality. Hence he might claim that he would accept that morality might have something to say about what one does within one's discretionary space. However, this distinction between the assessment of acts under the justice heading and under the "wider

morality" banner begs the question with which I am concerned, viz whether there is a separate realm of moral debate and separate standards applicable to the issues of political philosophy from those which hold sway over individuals in their private capacity. As we shall discuss in Chapters Five and Six, neutral impartialists (including Barry) make this distinction plausible only by suggesting that wider morality is less well attested and hence a matter of individual conscience. He quotes approvingly Mill's definition of justice (in chapter 5 of "Utilitarianism") as "the name for certain classes of moral rules which concern the essentials of human well-being more nearly, and are therefore of more absolute obligation than any other rules for the guidance of life." (quoted in Barry (95), section 12). Hence it is clear that Barry considers the constraints of justice more important than those imposed by "wider morality".

It is also clear from Barry's choice of adversaries that he does not wish to leave first order impartialists with a cogent case in "wider morality". Barry has most respect for Godwin as an impartialist, but his treatment of Godwin nowhere suggests that the rule of impartiality that he advocates might have application outside the domain of justice.

The Scanlonian argument for personal discretion (in the domain of justice) has two stages according to Barry: a priori and empirical. The a priori argument is that...

"In an attempt to secure strict impartiality in all areas of life a huge