I took Michael Sandel in our recent interview with him to be commenting about philosophical mistakes in our political discourse. One of these had to do with how we talk about rights. (And note that the following is not a formulation that he gives.) "Natural rights" are ontologically suspect. What could such a thing be? Is there any non-theological story that could really make sense of them? Kant and Rawls each try to give us a such a story, having to do with our nature as rational and willing beings. For Sandel, as with Hume and others, the matter is more complex: we simply can't analyze the facts about our desires and their relationship to our will and to other people and come up with absolute restrictions, i.e. rights that could never be legitimately contravened.
For someone like Anscombe, this position is intolerable: unless there are some absolutes, then we will rationalize bad behavior by torturous chains of utilitarian logic and end up bombing cities of innocent people. This move in ethics is tantamount to the move in founding the American government to make the system immune to corruption by individual officials.
Now, we know that merely dividing power does not make a system fool-proof; if all the different centers of power are still corrupt or blind or otherwise wrong about something, there will still be problems. The Bill of Rights presents us with the illusion of an absolute limit on power, but laws still need to be interpreted, and if the Supreme Court and the other branches agree to interpret a listed right in such a way that it won't protect some particular action, they can and have done that. Despite our efforts to the contrary, we remain a nation of people using laws as tools, not a nation of laws lording over people.
Likewise, morally, we can agree heartily that, for example, everyone has the right to life, but then achieve a broad consensus that, e.g. killing in self-defense or in a just war (i.e. in self-defense interpreted on a wider scale) or whatnot is still permitted. We may pretend to believe in absolute moral laws, but when faced with a wholly counterintuitive consequence of the letter of such a law, we reinterpret it: we refine it to actually make sense (and when we don't do this, we should).
It is a long-running beef of this podcast against theists and other moral absolutists that it's simply not true that unless there are moral laws somehow beyond human psychology or sociology, written into the fabric of the universe, then morality simply collapses, being replaced by individual desires and whatever arbitrary customs societies have developed. Sandel discusses this in terms of morality having to have the appropriate distance from us: If it's too close, i.e. if what is right is defined as what we already prefer or what we will (as individuals or societies), then the matter judged gets confused with the judging apparatus; there would be no standpoint from which we could criticize a moral practice. On the other hand, if moral commandments are too far away from us--if they aren't somehow rooted in ways that people actually behave--then they couldn't actually even apply to us (see our discussion about the Euthyphro; it's also a basic tenet of existentialism and follows from the is-ought distinction: even if God wrote right and wrong into the universe, if it were just a commandment floating in air that wasn't also somehow written into human nature, that then we as individuals wouldn't be obligated to make these objective values our values).
So the goal of a modern, mature ethics is to use our social and intellectual nature to be able to make judgments on moral matters, not primarily as individuals but as members of groups, using reflective equilibrium. There is no absolute standpoint (e.g. the Law of God or the will of the founding fathers) from which we can make apodictic moral judgments, but neither are we tied to judge according to (individual or social) whims. We can reflect using moral principles (as defeasible rules of thumb, not as absolute restrictions), long traditions (which we must analyze teleologically and critically so that we don't blindly follow the past), and gut reactions to individual alleged cases of injustice (which, while powerful guides, are themselves subject to criticism and possible revision).
So, while the concept of natural rights don't make sense, morally grounded legal rights as constructs to be argued for are an essential part of governing. Yes, we could all be corrupt or blind in the way that Anscombe feared in some particular debate and make mistakes, but we can't prevent that by pretending that some moral law or right is beyond human the human sphere of value creation. Instead, we need to further bring debate above-board, to further open the open society, to increase the honesty and integrity of our political debates.
And this, my friends, is what I am very very pessimistic about. Sandel gives the example that in deciding about the permissibility of abortion, we need to be above board in stating simply that we (as representatives in a Republic; this may not actually reflect the majority view) regard the Catholic claims that zygotes are persons as simply incorrect and not try to pussy-foot around such philosophical, scientific, and moral issues in issuing decisions. But this is of course exactly how law-making does not work. If we required consensus on philosophical issues before legislation could take place, nothing would get done. Instead, we make practical arguments: in the case of abortion, we can argue that whatever the ontological status of the zygote or fetus, people should have the right to choose what to do with their bodies. We can argue that outlawing abortions just leads to an unsafe black market in them. We tend to pass laws that seek to mitigate bad things that are happening, not to order society in any ideal way.
Reducing hypocrisy and encouraging rigor in public discourse is great, but the effect that doing so would have on actual legislation is difficult to predict. I think this kind of thinking works better in deciding what kind of society to promote instead of deciding what actions to outlaw. I brought up Robert Skidelsky on the good life, which of course relates to my ongoing interest in New Work. Skidelsky and Bergmann argue that working full time in a traditional job is not part of our human good. Put in terms of human dignity, it is beneath our dignity to sell off so much of our time. So what's the solution? If you think of outlawing certain actions as the only tool that government has in its toolbox, then it's hard to imagine how to address this. What, are we going to outlaw full-time work, disrupting all these free exchanges and leave people much worse off, with employers not able to get things done and (now part time) employees much much poorer? Sounds crazy.
But if instead of simply outlawing, the idea is to promote community values (and yes, the goal of talking about New Work is to change this community value and put this recognition that jobs generally suck into a politically efficacious spot), then there are tons of things that government can do, from using incentives (tax breaks and payouts) to facilitate livable New Work life arrangements to creating infrastructure (Obamacare, for one, and libraries, free public transportation, good public schools, and much more is needed if we're really going to lessen the role of money in day-to-day life as Sandel would like). So the political upshot of Sandel's position is a progressive government that discusses at a deep and far-seeing level what human good amounts to (insofar as it can be generalized across people; this will still be a thin theory, but not nearly as thin as Rawls would have us believe for a population in a particular historical time and place) and what can be done to help the population at large approximate that good.
The assumption here is that honest philosophical debate about the good will not end in us promoting Sharia law or any other reactionary, "morality"-based set of restrictions. One could argue, for instance, that an ideal person does not curse: that cursing comes from anger and disrespect, and so we should outlaw cursing. But this would get psychology backwards. If it's true that the ideal person doesn't curse (and let's just say for the sake of argument that it is), then instead of outlawing cursing, we should be trying to put people in a situation where they don't need to curse. If people in a veritable garden of Eden would still curse (because, say, the pomegranate juice squirts them in the eye), that would be a demonstration that cursing is actually not a vice, that it's a normal and healthy human reaction.
So the way that a good-acknowledging society (and not one that pretends to be neutral about the good a la classical Liberalism) avoids the kind of objectionable actions that Wes so often referred to in our discussions (promoting the good according to some particular religion) is by recognizing how difficult it is to be precise about the good, and in cases of significant doubt, to remain neutral. It seems to Sandel that selling your body (for sex or for surrogacy or advertising space) is inherently degrading. Well, if that's so, he'd need to argue for that, and such an argument--once you confine yourself to comments about inherent dignity and not about how such transactions are effectively coercive given the poverty or lack of other opportunities for the seller--is difficult to make, given that a Sam-Harris-type "science of morality" is fundamentally confused.
...Difficult, but not impossible, because we're not trying to establish an objective fact, not a full-fledged theory of human nature and human good, but merely enough to achieve a consensus for action. Hasn't human experience told us that, in general, some situations are simply not good for us? If you want to argue that prostitution, even if completely free of tacit coercion, is OK, then you have to argue something about sexuality: that just as we don't think it's particularly demeaning for someone to dance or play a sport (wrestling!) for money, adding the sexual element doesn't add anything that would change that intuition. To bring back in New Work, haven't we had enough people punching the clock for enough years to know that at least some work situations (ones which involve actual clock-punching, for sure, but many others besides) are simply not in tune with our well-being? Less controversially, we have enough experience as a culture with long-term relationships to know that same-sex ones aren't significantly more screwed up than opposite-sex ones, so there should be no objections to gay marriage on those grounds. Want to outlaw a drug? I could see a good case to be made that any substance (alcohol) that makes us think less clearly is demeaning to our humanity, but there's also plenty of documented experience that drinking enhances life.
And of course, even if we come to a consensus on the fact about the good life, there are still practical considerations that would determine whether or not to make a law out of it. If it's not worth the resources to enforce, or if enforcing it would involve nasty by-products (e.g. dents in privacy), then forget it: maybe this is something we have public service announcements about but don't actually prohibit. Incentives may be more than we want to pay for; desirable infrastructure may be more complex than we want to build. Every legislative situation is unique. Unfortunately, the good faith argumentation required to evaluate such situations, give a nuanced analysis of both the philosophical and practical issues, and propose sensible laws is something that elected legislators, at least, seem to me largely incapable of, for fear of angering their constituents and/or financial backers. Perhaps committees such as the one on stem cell research that Sandel mentioned serving on can serve some of this deliberative purpose, if Congress and state legislatures are not up for the job.