Brooks on Retributivist Arguments against the Death Penalty (Part One)

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This brief series is inspired by Thom Brooks’s article “Retributivist Arguments against Capital Punishment”. The article is interesting for its attempt to present a solid retributivist argument against the death penalty. And this is interesting because retributivist arguments are usually used to support the death penalty.

I say this series is “inspired” by Brooks’s article because I’m not going to directly follow everything Brooks’s has to say. He focuses his attention on arguments offered by specific theorists (McDermott and Nathanson) and considers some competing interpretations and constructions of what they say. I’m going to focus purely on the arguments I found to be most interesting, and, in addition, I’m going to speculate and expand upon on some possible responses that are not covered by Brooks.

I’m going to spread the discussion over two posts. In this post, I will present the basic retributivist argument in favour of the death penalty and I will comment on some of the different definitions of retributivism. I will then discuss the racial bias-argument against the death penalty. In the next post, I will discuss the uncertainty-argument against the death penalty. This is the argument that Brooks finds most attractive because of its appeal to retributivist principles. Finally, again in the next post, I will discuss a range of responses to the uncertainty-argument.


1. The Retributivist Argument in Favour of the Death Penalty
I’ve presented this argument in a previous post, but in order to make this post as self-contained as possible, here is the basic retributivist argument in favour of the death penalty:

• (1) It is right and proper for the guilty to be punished in proportion to their level of wrongdoing.

• (2) Death is the proportionate punishment for those who are guilty of some crimes.

• (3) Therefore, it is right and proper for those who are guilty of some crimes to be put to death.

Since the focus in this post is on retributivist arguments against the death penalty, we are going to assume the truth of premise (1). That is to say, we are going to assume that retributivism is a morally defensible theory of punishment. As it happens, this is not an assumption I’m generally inclined to make. But I’m willing to make it here in order to see the different conclusions that can be derived from a retributivist principle. In addition to this, we are going to assume that (2) is, on at least some occasions, true. In other words, we are going to assume that death *can* be a proportionate punishment. As against this, we are going to consider the possibility that there are, nevertheless, good retributive reasons for thinking that the death penalty system ( i.e. the legal machinery used to impose the death penalty) is illegitimate.

This raises the question of what exactly do we mean by “retributivism”. Up to now I’ve been holding that retributivism is made up of two key theses:

The Intrinsic Good Thesis: Punishment of those (and only those) who engage in culpable wrongdoing is an intrinsic good, i.e. it is good apart from any positive or negative consequences that might flow from it.

The Proportionality Thesis: Punishment is only justified when the punishment is proportional to the crime.

But Brooks’s mentions a third thesis of retributivism (although note: he doesn’t actually explicitly mention the other two, though I think something like them is implied by what he says). This thesis has to do with the purpose of retributive punishment:

The Redistribution Thesis: Punishment is designed to take away the unfair advantage gained by the person who broke the rules.

While this thesis has some attractive features — I particularly like how it links punishment to distributive justice, but why I like this is a story for another day — I have some concerns about it. These concerns may seem petty at first glance, so I need to articulate them carefully.

My chief concern with the redistribution thesis is my uncertainty over the role that the thesis plays in the justification of retributive punishment. The other two theses clearly have a role to play in justification. Together, they imply that punishment is only justified when it is (a) limited to those who are guilty and (b) proportionate. Do we add to this a further requirement that punishment is only justified if it takes away the unfair advantage? It’s not clear because Brooks’s speaks only of redistribution as being the “purpose”, not the justification for retributive punishment. This may seem like a slightly pedantic point, but I think there is a real need for clarity here since there is a whole other theory of punishment — called the “restitutionary theory” — that would seem much more comfortable with the redistribution thesis.

Also, I wonder whether the redistribution thesis “stacks the deck” against the death penalty. After all, killing someone seems a bit excessive if the goal is merely to take away the unfair advantage they gained by committing a crime. So it would seem like the death penalty automatically fails the redistribution test. I wouldn’t like to stack the deck against the death penalty here since the goal of this exercise is to discover whether there are any good retributive reasons against the death penalty: to include within the definition of retributivism a criterion that automatically excludes the death penalty would defeat this goal.

Finally, I’m not sure that “unfair advantage” is the best concept to employ when it comes to understanding criminality, particularly the kinds of criminality traditionally covered by the death penalty. For example, is it really true to say that someone who rapes and murders a child thereby gains an “unfair advantage” over those who do not? Surely not. To say that something has bestowed an “unfair advantage” is to signal a positive attitude toward that thing: it is to say that the person who has gained it has gained something that we ourselves would like to have. But then it would follow that, in order to endorse the redistribution thesis, we would have to believe that raping and murdering children is a positive thing. Since this is clearly not what we believe, it must be wrong to say that this kind of criminality bestows an unfair advantage. (It’s possible that other forms of criminality do.)

For these reasons, I’m inclined to leave the redistribution thesis out of the definition of retributivism. As it happens, I don’t think this will impinge upon the remainder of the discussion.


2. The Racial Bias Argument
A popular argument against that death penalty system holds that because the system is racially biased — i.e. because you are more likely to be executed if you are an African American — it is morally illegitimate. As it happens, I’m not sure whether this racial bias actually exists. (I imagine it does, but I’ve read studies suggesting that the race of the victim plays a greater role in determining who gets sentenced to death than does the race of the defendant.) But I don’t really care for the purposes of this blog post. As was the case with the truth of retributivism, I’m going to assume it’s true and see what follows.

The racial bias line of reasoning is particularly popular in the United States, mainly for constitutional reasons. Now, I’m no scholar of the US constitution, but I know there is an amendment — the 14th — which includes a statement about “equal protection of the law”, and I know that this amendment has been called into service in arguments against the death penalty on racial bias grounds (see McCleskey v. Kemp for an unsuccessful example of this).

But we’re not interested in these legal arguments; we’re interested in moral arguments. To be precise, we’re interested in retributivism and whether the racial bias argument can provide a retributivist reason to reject the death penalty. To investigate this we need first to figure out the reasons why racial bias is thought to make the death penalty morally illegitimate and then we need to see whether these reasons are in any way connected to retributivism.

One reason we might have a problem with the bias is that the bias might lead to erroneous legal decisions, i.e. it might result in people who are not guilty of wrongdoing being mistakenly selected for execution. We’ll leave this possibility to the side for one moment, since we’ll consider a separate argument based on this problem in a moment. This means we’ll assume that, despite the bias, it’s still only guilty people that are selected for execution. The problem is that it’s just a subsection of those people that are being selected. Stephen Nathanson uses the following analogy to make the point:

Suppose there is a highway patrol officer who rightly identifies everyone that is guilty of speeding, but only selects from those people the bearded ones for speeding ticks.

Does this seem wrong? Nathanson thinks so, and I’d be inclined to agree. To use an arbitrary criterion like the presence or absence of facial hair to pick who suffers for the legal consequences of their acts definitely seems morally circumspect. Applied to the death penalty system, the analogy works like this: to arbitrarily select only those guilty persons with a particular skin colour is morally circumspect. But is this because it is incompatible with retributivism? Consider the following:

• (1) It is right and proper for the guilty to be punished in proportion to their level of wrongdoing.

• (2) Death is the proportionate punishment for those who are guilty of certain crimes.

• (4) Because of racial bias, the death penalty system only selects an arbitrary subset of those who are guilty for execution.

• (5) Therefore, the death penalty system is illegitimate.

The first two premises here are just taken from the original argument. They are the bedrock of the retributive theory under examination. Premise (4) is new and states explicitly the problem of racial bias. (5) then is the conclusion that proponents of the racial bias argument would like us to reach, but does it follow from the premises? Clearly not. A retributivist thinks it is right and proper for the guilty to be punished. The mere fact that a subset of the actually guilty are arbitrarily selected for execution by the legal system is not enough reason to reject the legal use of execution. After all, the guilty are still being punished appropriately. It’s just that not all of them are.

To sum up, the problem of racial bias provides no retributivist reason for rejecting the death penalty system. Confronted with the problem, the retributivist can easily turn around and argue that it merely provides reason for executing more people. If we think the racial bias problem does provide reason for rejecting the death penalty system, this is because we are adopting a non-retributive principle for evaluating the system.

In part two, we’ll see whether a retributive argument against the death penalty system is possible.

The Craig-Law Debate: Mapped

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I don't usually do links-posts on this blog, but I thought I'd make room for an exception this time. Thrasymachus (the Polemical Medic) has done a wonderful job mapping out the Craig-Law debate that occurred on Monday 17th of October. I highly recommend taking a look. I used to think I was okay at doing argument maps, but I think I've definitely been bested.

The Craig-Law Debate - Argument Map

Enjoy!

What can Law's Evil God Challenge Do?

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Stephen Law debated William Lane Craig on Monday night. I didn’t go, though I would have liked to. I did, however, get the chance to read Law’s contributions to the debate (which he posted on his blog) as well as some other internet reviews and discussions of the event. Public debates of this sort are never particularly illuminating — if you want to be illuminated there’s no substitute for reading the primary academic literature and thinking about it for yourself — but they may serve some purpose. They may encourage people to view something from a different perspective, to take their first steps toward self-learning, and to appreciate different viewpoints.

As might be expected, there is much bias affecting the internet reviews and discussions of Monday night’s event. Still, from what I’ve read it seems that Law did relatively well in the debate, at least when compared to Craig’s former opponents. He had a strategy, he stuck to it, and didn’t get bogged down in peripheral issues (for instance, he studiously avoided any discussion of Craig’s Kalam argument). That said, there is some confusion about the precise nature of his strategy and what it was intended to do.

The strategy in question centred on the Evil God Challenge (the EGC, for short). This is something Law has written about in the past, and his output on it includes a rather good article published a couple of years back in the journal Religious Studies. The problem with Law’s use of the EGC is that the EGC is open to several interpretations. In this post, I want to review three plausible interpretations of the EGC and pass some comments on which I think is the strongest. Before getting to those three interpretations though, I want to briefly outline the main features of the EGC.


1. The Main Features of the Evil God Challenge
The EGC is, in effect, a clever inversion of the traditional evidential problem of evil. The evidential problem of evil runs something like this:

• (1) If an all-powerful, all-knowing, all-good being existed, that being would not allow gratuitous suffering to occur.

• (2) Gratuitous suffering probably does occur.

• (3) Therefore, (probably) an all-powerful, all-knowing, all-good being does not exist.

The argument is evidential in that it does not claim that there is a logical inconsistency between God and evil, but, rather, that there is strong evidence against the theistic hypothesis. There are two key elements to the argument. The first is the meaning of the term “gratuitous suffering”, which is simply “suffering that does not help to secure some greater good or prevent some greater evil”. The second is the truth or falsity of premise (2).

In responding to premise (2), theists can adopt one of two strategies: (i) they can argue that every apparently gratuitous instance of suffering does, in fact, serve some greater good (or prevent some greater evil); or (ii) they can argue that we have no way of knowing whether or not they serve some greater good. The first of these strategies can be called constructing a theodicy and the second can be called donning the skeptical theist’s hat. In responding to the theist, the proponent of the evidential argument will either: (a) argue that none of the profferred theodicies do account for observed instances of suffering (there’s so much of it, after all); or (b) point to the worrying implications of skeptical theism. No doubt theists will remain unconvinced.

This is where the EGC comes into play.

As I mentioned above, the EGC inverts the evidential problem of evil. That is to say: it presents us with an evidential problem of good. It does so by first asking us to imagine that an all-powerful, all-knowing, all-evil being exists (call it “Evil God”). It then highlights all the wonderful, joyous events that occur in the world, events that don’t seem connected to any greater evils (call them “gratuitous joys”). And finally, it suggests that these gratuitous joys provide evidence against the existence of Evil God. As follows:

• (4) If an all-powerful, all-knowing, all-evil being existed, that being would not allow gratuitous joy to occur.

• (5) Gratuitous joy probably does occur.

• (6) Therefore, (probably) an all-powerful, all-knowing, all-evil being does not exist.

Again, the argument can be responded to in one of two ways. First, the believer in Evil God can argue that every apparently gratuitous instance of joy does, in fact, serve some greater evil (call this constructing an e-theodicy). Or second, the believer in Evil God can argue that we have no way of knowing whether or not apparently gratuitous joys serve some greater evil (call this donning the skeptical e-theist’s hat). The Evil God skeptic will respond by either (a) arguing that none of the profferred e-theodicies do account for observed instances of joy (there’s so much of it, after all); or (b) pointing to the worrying implications of skepticial e-theism.

At a first pass, the EGC is simply the presentation of this inversion in as clear and detailed a manner as possible (Law’s original article certainly does this). It is then left to the theist to work out the implications of the inversion for their own belief system. But this is unsatisfactory. It would be better if we could spell out in more detail exactly how the EGC should affect the theist’s belief system. So let’s look at three possibilities.


2. The EGC as a Reductio of Theism
The first possibility is to present the EGC as a reductio of classical theism. Classical theists believe in the existence of an all-powerful, all-knowing and all-good being. The problem is that while their standard arguments (cosmological, design etc.) may establish the existence of a creator God, they do nothing to establish that the creator is all-good. Hence they must do something more to show that the creator is all-good. This brings the EGC challenge into play since it suggests that the case for an Evil God is just as strong as the case for a Good God.

This is where things get interesting. When confronted with the idea of an Evil God, most classical theists will be inclined to simply dismiss it as being absurd. But if all other arguments fail to support the existence of a Good God, and if the evidential problem of good is just as strong as the evidential problem of evil, shouldn’t they then accept that idea of a Good God is absurd too? In other words, shouldn’t they accept the following argument:

• (7) The EGC shows that the evidence in favour of the existence of a Good God is roughly equal to the evidence in favour of the existence of an Evil-God.

• (8) The case for Evil God is absurd.

• (9) Therefore, (probably) the case for Good God is equally absurd.

This seems like a reasonable enough way in which to run the EGC. The problem is that classical theists have some responses. They can argue against (7) by suggesting that the evidence is not perfectly equal (or that there are other arguments for the goodness of the creator); or they can argue that (9) does not follow from (8) because the concept of a Good God is crucially disanalogous from the concept of an Evil God; or, they can even argue that the concept of an Evil God is not absurd.

Law’s original article on the EGC considers these kinds of responses, which suggests that he too originally understood the EGC as a reductio of classical theism. (To be fair, his approach was softer: he argued that both were equally unreasonable, not equally absurd). But in clarifying his argument from Monday night, I think he gestures toward an alternative interpretation.


3. The EGC as Support for the Evidential Problem of Evil
Go back, for a moment, to my earlier presentation of the evidential problem of evil. As you recall, the key premise there was:

• (2) Gratuitous suffering probably does occur.

This premise is supported by identifying instances of suffering that seem pointless to us, applying the principle of warranted induction (i.e. what seems to be the case probably is the case), and concluding that there probably are genuinely pointless instances of suffering. Generally, classical theists do not accept this line of reasoning. While many of them will accept that there are instances of seemingly gratuitous suffering, they will reject the idea that we are warranted in jumping from a claim about what seems to be the case to a claim about what actually is the case.

Now look at the key premise in Law’s evidential problem of good:

• (5) Gratuitous joy probably does occur.

This premise is structurally equivalent to premise (2). That is to say, we would support it in exactly the same way: by first identifying instances of joy that seem (to us) not to serve any greater evil, by applying the principle of warranted induction, and by concluding that there probably are genuinely gratuitous instances of joy. But what do theists say in response to this? Do they reject the inference in the same way that they rejected the inference in the evidential problem of evil?

Law suggests that many will accept the inference in the case of the evidential problem of good. But this means that they ought to accept the inference in the original argument too. In other words, it implies that they ought to be persuaded by the evidential problem of evil. In more long-winded fashion, we say the following:

• (10) When confronted with the EGC, classical theists accept the principle of warranted induction.

• (11) The principle of warranted induction states that if a defined reference class of events in the world seems, after a reasonable search, to have a certain quality Q, then it probably does have that quality Q.

• (12) A reference class of events in the world seems, after a reasonable search, to have the quality of gratuitous suffering.

• (5*) Therefore, (classical theists ought to accept that) gratuitous suffering probably does occur.

The idea that the EGC can be used to reinforce the evidential problem of evil is an attractive one, but it is also somewhat suspicious. After all, part of the strength of the EGC was its suggestion that the evidential case for an Evil God is just as good as the evidential case for a Good God. To turn around and then use the EGC to support the evidential case against a Good God is downright odd. This is does, however, open up a pathway to a third possible interpretation of the EGC.


4. The EGC as Part of the Argument for Indifference
Paul Draper’s 1989 article “Pain and Pleasure: an Evidential Problem for Theists” suggested that the debate between theists and non-theists could be construed as a debate between those who think the universe has some morally good creator behind it (theists), and those who think it it is morally indifferent (non-theists). In other words, between those who think the Hypothesis of Indifference (HI) is, on the available evidence, more likely to be true than the Hypothesis of Theism (HT).

I think Law’s EGC could be employed as part of the evidential case for HI. How so? Well, go back to the idea of the principle of warranted induction. This principle states that we can make warranted inferences about the actual nature of a defined reference class of events by performing a reasonable survey of the members of that reference class. So we must ask: When trying to make warranted inferences about the moral character of the universe, what is the relevant reference class of events? I would argue that the relevant reference class of events is all events affecting sentient beings. Why only those events? Because under most conceptions of morality, it is only such beings that have moral significance.

What Law’s EGC does (when read in its totality) is show us that the reference class of events involving sentient beings appears to have a balanced set of moral qualities. Yes, it is true that some events have the quality of gratuitous suffering, but it is also true that a roughly equal number have the quality of gratuitous joy. In other words, the events in the relevant reference class seem to have equal amounts of the quality Q (goodness) and ~Q (badness).

But wouldn’t that imply that the universe has no discernible moral character? And isn’t this exactly what we would expect if the hypothesis of indifference were true?

I’m not entirely sure how to move from these rhetorical questions to a proper argument, but maybe something like this could work.

• (11) The principle of warranted induction states that if a defined reference class of events in the world seems, after a reasonable search, to have a certain quality Q, then it probably does have that quality Q.

• (13) The moral character of the universe should be observable in the class of events affecting sentient beings.

• (14) If HT is true, then we would expect there to be significantly more goodness than badness in the class of events affecting sentient beings.

• (15) If HI is true, then we would expect the class of events affecting sentient beings to have roughly equal amounts of goodness and badness in it.

• (16) If HI is probably true, then HT is probably false.

• (17) The EGC suggests that the reference class of events affecting sentient beings, after a reasonable search, seems to have roughly equal amounts of goodness and badness.

• (18) Therefore, the reference class of events affecting sentient beings probably does have equal amounts of goodness and badness in it (from 11 and 17).

• (19) Therefore, HI is probably true (from 15 and 18).

• (20) Therefore, HT is probably false (from 16 and 19).

I haven’t mapped this out because it’s incomplete (for instance, premises 13 and 14 don’t feature in any of the argument’s derivations so I’m wondering what they’re doing there). But if it could be completed, I think it would be the most promising and most persuasive way in which to employ the EGC. That said, it would certainly still be open to critique. For instance, (15) is particularly problematic. The claim it makes is that roughly equal amounts of goodness and badness imply indifference, but that isn’t necessarily true. After all, we would expect the same if Manicheanism were true. So how can I say HI is supported by that evidence more than Manicheanism (or even some forms of polytheism)?

To sum up, I think there are at least three different interpretations of the EGC. Each has its strengths and weaknesses. The reductio interpretation could be rhetorically effective but there are some well-known responses. The “supporting the evidential PoE-interpretation is intriguing but, ultimately, suspicious. And the indifference-interpretation is, to my mind, the most promising but also the most incomplete. More work needs to be done on the concept of moral indifference, and the expectations we would have from a morally indifferent universe, for it to become persuasive.

Is there a connection between human nature and moral norms?

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This post examines how natural lawyers view the connection between facts about human nature and ethical norms. To guide me through this difficult topic, I’m going to use an article by one of the leading contemporary natural lawyers, Patrick Lee. The article in question is called “Human Nature and Moral Goodness” and it appeared in the book The Normativity of the Natural: Human Goods, Human Virtues, and Human Flourishing.

The article is relatively short and covers three key points. First, it considers an incorrect view of the relationship between facts about human nature and ethical norms. Second, it considers a more correct view of that relationship. And third, it addresses some intramural theological worries about knowledge of basic moral principles. I’m not too concerned about the theological worries myself, so I'll skip those.

At the risk of sounding like a broken record, it’s worth noting I have no interest in defending natural law myself, I’m merely interested in understanding it.


1. The Wrong View of the Connection
The wrong view of the connection between human nature and ethical norms is the simplest view. And the simplest view is the one that stipulates that whatever is natural is equivalent to what is moral. In other words, the “natural” simply is the criterion of the “moral”: if the world is naturally in State A, then it ought to be in State A. In the specific case of human nature this means that whatever it is the human beings do naturally (e.g. perform a certain biological function or engage in rational thinking), is the same as what they ought to do. We can call this the “whatever-is-is-right”-view (WIIR-view, for short), in honour of the line from Alexander Pope’s “Essay on Man”.

All Nature is but Art, unknown to thee;
All chance, direction, which thou canst not see
All discord, harmony not understood,
All partial evil, universal good:
And, spite of pride, in erring reason's spite,
One truth is clear, whatever is, is right.

Although the WIIR-view can be found at work in some natural law arguments, Lee thinks it is wrong. He uses an example to make his point. Suppose the natural function of speech is to communicate the truth as one sees it. Lying would then be a corruption of the natural faculty. Does it follow that lying is morally wrong? It would seem to, but as Lee points out that doesn’t seem to be a good enough reason to think lying is wrong. After all, why couldn’t it be that lying is some brilliant ethical innovation in the speech faculty, something that allows us, on occasion, to secure morally superior ends? (There are countless other objections not raised by Lee, e.g. how does one correctly discover a “natural” function as opposed to “artifactual” function).

A more sophisticated version of the WIIR-view can be found among the Aristotelians. The Aristotelians do not believe that all human natural functions are guides as to what is morally right. Rather, they believe that only those natural functions that are distinctively human are guides to what is morally right. They usually single out the faculty of reason as being the distinctively human faculty. And they propose that we ought to develop this faculty as much as possible in order to live the good life.

Lee rejects the Aristotelian view too. He does so on the ground that the Aristotelians are wrong to think that all aspects of our natures other than the capacity for rationality are shared with other animals. For example, although it is true to say that animals other than human beings have the capacity for reproduction, it wrong to say that it is the same capacity across all species. The human capacity for reproduction is distinct because humans reproduce a different kind of being when compared with other animals; they reproduce another human, complete with a rational “soul”.

There’s lots to disagree with Lee about here. But since I care more about his positive views than his negative views I shall move on.


2. The Correct View of the Connection
If the Aristotelian view and the WIIR view are too simplistic, how can we arrive at a view that is appropriately sophisticated? We must begin with an appropriate conceptualisation of a being’s nature.

The Nature of a Being : is the structure that is internal to the being itself, that provides it with inherent tendencies and potentialities, that distinguishes it from other types of beings, and that constrains what it is possible for that being to do.

Lee thinks it is wrong to think that human beings do not have natures. He knows that some existentialists maintain that humans have no intrinsic natures and that they are completely free to determine their own tendencies and life plans, but he thinks that even the existentialist must admit to the reality of an intrinsic nature. Why? Well, prior to implementing their freely chosen life plans, the existentialist will have to have acknowledged the differences between them and their surroundings, and to have taken note of the predictable ways in which they are affected by those surroundings. This requires the implied recognition of an intrinsic nature.

The presence of an intrinsic nature has ramifications for freedom of choice. It doesn’t necessarily hinder or limit our capacity for free choice and action — Lee insists that such an interpretation would be wrong wrong — rather it is the intrinsic nature that makes choice and action possible in the first place. For when we choose among options, the possibilities are set by our nature; and when we act, we are actualising one of our natural potentialities or tendencies.

Natural law theorists see the actualisation of our potentialities and tendencies as being the key to understanding the relationship between human nature and ethical norms. Our natural tendencies and potentialities are complex, but limited. Their actualisation is what constitutes the good for beings like us. Natural law theorists thus call the actualisations of our natural potentialities tendencies the basic goods , and these are the mark of what is moral.

But surely this is to say too much? After all, if every action is the actualisation of a natural potentiality, and if every such actualisation is a basic good, then it follows that all actions are morally good. Thus, we can never be said to act in a morally impermissible manner.

Not so fast. Lee argues that there are two ways in which to actualise a potentiality. One of these is morally acceptable the other is not. The first way is to act so that each good respects and honours the basic goods that are not actualised in that particular act. The second is to act so that one good is honoured at the expense of the others. The first way is morally acceptable, the second is not.

This then is how Lee thinks our nature can begin to provide us with moral guidance.


3. From Practical Oughts to Moral Oughts
Although the actualisation of potentialities is a first approximation of how our natures provide us with moral guidance, it is not the whole story. Lee is persuaded by Hume’s famous claim that you cannot derive an “ought” from an “is”. He thinks that moral norms are ontologically grounded in our natures, but not logically derived from them. But this then raises the question: how do we derive practical oughts?

In answer to this question, Lee, like most of the new natural lawyers, appeals the self-evident nature of the basic goods. In other words, to the idea that there are some ends to which practical reason can be directed that are self-evidently good. These ends include life, personal integrity, friendship, marriage (Lee explicitly includes this in his list of the basic goods), knowledge, sociality, aesthetic experience and play. When it comes to these things there is no need to ask the question “what is it that makes them good?”, it is just obvious that they are.

Self-evidency claims of this sort can be more or less persuasive. For instance, Finnis makes a pretty good case for the self-evident good of knowledge. How does he do this? By pointing out that there would be a self-contradiction (of sorts) present in anyone who denied the value of knowledge. The person who argued that knowledge of X was not valuable, would first have to know what X was. In other words, it is only after knowledge of X is attained that value judgments can be made about it. Other self-evidency claims are less persuasive. For instance, it’s not clear to me that life is always and everywhere a good. There would seem to be some situations in which life is necessarily traded off against other basic goods (e.g. as in euthanasia scenarios).

This leads to a more general criticism of Lee’s position on moral norms. In distinguishing between practical oughts and moral oughts, Lee once again points to the difference between actions that honour all the basic goods and those that sacrifice some in order to promote others. The former are morally permissible, the latter are not. There are two important clarifications to be made of this position: (i) it means that morality is not a set of rigid hard-and-fast rules, there is some flexibility as to what one ought to do; and (ii) it does not mean that we cannot promote one good more than the others, it only means we cannot promote one good at the expense of the others.

What’s the problem with this position? Well, in order for it to be practicable it must be the case that no moral dilemmas actually exist. After all, a moral dilemma is a situation in which, no matter what you do , at least one morally undesirable outcome will occur. As such, any choice in a moral dilemma would involve a trade-off between recognised goods. And so, under Lee’s view, no matter what you do in a moral dilemma, you are doing something morally impermissible.

Take the ticking bomb scenario as an example. If the scenario exists (and I think variations on it probably do), you are forced to choose between (a) torturing someone and thereby causing pain and promoting mental/physical disunity; or (b) not torturing somebody and allowing many people to die. This seems to involve a necessary trade-off between the good of life and the good of personal integrity. How can a natural lawyer like Lee deal with this?

I mention this example for a good reason. Lee has actually written an article about interrogational torture in which he defends his natural law approach. I read this several years ago, but as far as I recall the article illustrates the problem I’ve highlighted here. Lee resolves the dilemma by engaging in questionable definitional practices. In particular, he narrows the definition of torture so as to allow for the permissibility of certain coercive interrogational practices. I think the definitional game he plays highlights the problem that natural law has with moral dilemmas.

Corvino on the PIB Argument (Part Three)

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Philosopher John Corvino (courtesy of Flickr user yksin)

(Part One, Part Two)

This is the third part of my series on John Corvino’s article “Homosexuality and the PIB Argument”. In part one, we learned what the PIB argument was and we considered some pre-existing responses to it. In part two, we were introduced to Corvino’s preferred response to the argument. In this part, we will look at how Corvino handles the criticisms of the “new” natural lawyers such as Robert George, John Finnis and Patrick Lee.

The PIB argument works off the idea that if we accept that homosexual relations are morally permissible, we must then accept that polygamous, incestuous and bestial (PIB) relations are morally permissible. But since most people agree that PIB relations are not morally permissible, it follows that homosexual relations must not be morally permissible. As such, the argument proposes that a slippery slope exists between homosexuality and PIB: if we accept homosexuality we must slide down the slope to PIB.

As we saw in part two, Corvino challenges this argument in an unusual way. First, he argues that nonprocreative heterosexual relations and homosexual relations can be endorsed for the same moral reasons. Then he points out that if this is the case, there is no more reason to think that there is a slippery slope between homosexuality and PIB, than there is to think there is a slippery slope from heterosexuality to PIB. And since no one thinks there is a slippery slope from heterosexuality to PIB, the argument is defeated.

There is, however, one important criticism that Corvino needs to contend with. This criticism comes out of the work by the new natural lawyers. They argue that there is something crucially different about heterosexual relations (even of the nonprocreative kind) when compared with homosexual relations. And it is this crucial difference that makes the former morally permissible and the latter morally impermissible. Today we’re going to learn what that crucial difference is supposed to be, and see how Corvino deals with it.


1. The Marital Good Dilemma
The new natural lawyers — represented by the work of Finnis in Corvino’s article — believe that there is a set of basic goods toward which all human action should be oriented. (There is some doubt about the precise form of this orientation. Most natural lawyers are presumptive deontologists, but there is no particular reason why they could not be presumptive consequentialists. That, however, is an argument for another time). These are all intrinsic, as opposed to instrumental, goods. Which means they are good in and of themselves, irrespective of the other consequences that may flow from them.

Now one of these intrinsic goods is the so-called marital good. This good is achieved when a man a woman achieve a two-in-one flesh sexual union of the procreative kind ( i.e. vaginal intercourse). Why is this a good? Well, there are two answers. Either it simply is, and there are no more questions to be asked, or it has to do with value of certain biological functions: the reproductive function being the only (human) biological function that requires the coordinated activity of two people.

It is important to be clear that, according to the new natural lawyers, the marital good can only be achieved by uncontracepted vaginal intercourse between a man and a woman who have committed themselves to one another through a marriage ceremony. All other forms of sexual union are not intrinsically good; in fact, they are (intrinsically?) bad. This includes contracepted vaginal intercourse, premarital sex, non-vaginal intercourse, oral sex, masturbation and, of course, homosexual acts and PIB acts. Finnis, in particular, is remarkably clear and consistent about his moral opposition to these other sexual acts. Why are these other acts bad? A variety of reasons are cited, chief among them being the supposed damage they do to the marital good, and the mental/physical disunity they promote. We’ll talk about both in more detail later.

It is also important to be clear that, again according to the new natural lawyers, the marital good can be achieved by sterile married couples. How can this be if the activity is essentially connected to procreation? The answer is convoluted, and not entirely persuasive, but it seems to have to do with the intrinsic goodness of reproductive kind acts: it is morally good to perform an act of the reproductive kind, regardless of its ultimate consequence. Cutesy analogies are often used to support this point, such as “it’s still baseball, even if the team never wins.”

Anyway, if the marital good is recognised — and all non-marital sexual relations are thereby distinguished — an argument can be mounted against the gay-rights advocate like Corvino, and in support of the original PIB argument. To be precise, the PIB argument can be reformulated with a disjunctive major premise, a pair of hypotheticals, and a conclusion supporting the traditionalist view of sexual morality. As follows

• (1) Either heterosexual relations are only morally permissible when they realise the intrinsic goodness of the marital good, or they are morally permissible when they are instrumentally important in achieving a range of other goods.

• (2) If heterosexual relations are only permissible because of the marital good, then homosexual relations are not morally permissible.

• (3) If heterosexual relations are permissible because of their instrumental importance in achieving a range of other goods, then homosexual relations are permissible but so too (probably) are PIB relations.

• (4) PIB relations are definitely not morally permissible.

• (5) Therefore, heterosexual relations are not permissible because of their instrumental importance in achieving a range of other goods (from 3 and 4).

• (6) Therefore, heterosexual relations are only morally permissible when they realise the intrinsic goodness of the marital good and homosexual relations are impermissible (from 1,2, and 5).

This argument is my own interpolation into Corvino’s article, but I think it’s a valid reconstruction of how he views the impact of new natural law. I also think it’s valid (someone might check this for me). As you can see, the argument is partly dilemmatic. It’s challenging the gay-rights advocate to either accept the new natural law position or accept the permissibility of PIB.

But is there any reason to accept this argument? Corvino thinks not. He points to three problems that make the natural law argument deeply implausible.


2. The Sterility Problem
First, there is the sterility problem. How can natural lawyers consistently believe that: (a) sexual acts are only morally permissible if they are of the reproductive kind; and (b) that sexual acts are still permissible even when they have no chance of achieving reproduction? Admittedly, there is no blatant contradiction taking place here, but there is, nonetheless, a strange metaphysics of value underlying this set of beliefs. It is reminiscent of the sympathetic magic rituals that are sometimes practiced by primitive tribes: imitating or metaphorically representing the act or object that you really value is deemed equally valuable.

But saying this highlights a potential stumbling block for the natural lawyer. If a sterile, but reproductive-kind, sexual act is morally valuable because it metaphorically mimics or represents a genuinely reproductive act, is it really that much of a stretch to say that certain homosexual acts are valuable because they metaphorically represent genuinely reproductive acts? Admittedly, there are dissimilarities between the two kinds of act, but if we’re going to allow that the act need not have even the remotest possibility of leading to reproduction (e.g. as in intercourse between a castrated male and a woman with a hysterectomy), isn’t there a new slippery slope argument to be made?

The situation is not helped by the analogies offered by the natural lawyers to support the alleged link between reproductive-type acts and sterile sex. Robert George and Patrick Lee, for instance, ask us to imagine a man who has some severe digestive disorder that leads him to vomit-up all food that he eats. Nevertheless, the man continues to eat. George and Lee contend that even though no food is fully digested, the man is still performing acts of the “nourishing-type”.

Presumably, the point behind the analogy is that the man’s nourishing-type acts have the same intrinsic value as genuinely nourishing acts. But as Corvino points out, this really stretches the bounds of credulity. Surely, there’s no way such a man could be said to be performing acts of the nourishing type. And similarly, surely there’s no way that a sterile married couple could be said to be performing acts of the reproductive kind.

Natural lawyers could respond by pointing to other goods realised by sexual acts between sterile married couples. The problem is, once you go beyond the supposed good of traditional reproduction, these other goods will tend to be available to homosexual couples. So there’s no longer a principled line to draw between heterosexual sex and homosexual sex.


3. The Damage-to-Marriage-Problem
A second problem arises from the supposed link between the value of the marital good and the impermissibility of homosexuality. Just because one set of activities is deemed morally permissible for one reason, it does not follow that another set of activities are not morally impermissible for the same reason. Both sets of activities could be deemed permissible for different reasons. For example, chess might be deemed valuable because it improves our cognitive powers, whereas tiddlywinks might be deemed permissible because it helps forge bonds of loyalty between those who play it. Why couldn’t something similar be true of heterosexual and homosexual relations?

The typical answer from the natural lawyers is that homosexuality somehow damages the marital good. Finnis, for example, argues that once you allow non-marital sexual acts, you allow for the possibility that the marital good is a “merely incidental” dimension of sexuality. This, according to him, is wrong. The complete exclusion of all other sexual acts from one’s sphere of morally acceptable behavior is an “existential, if not logical, precondition” for the marital good. What’s more, damage can be done to the marital good even by those who have no intention of trying to realise the traditional marital good themselves. Finnis supports this second claim — which is more important in the present context — with the following:

Just as a cowardly weakling who would never try to kill anyone yet deliberately approves of the killings of innocent people in a terrorist massacre has a will which violates the good of life, so [someone] violates the good of marriage by consenting to (deliberately approving) non-marital sex acts such as solitary masturbation.

Corvino thinks this whole line of reasoning is unpersuasive and question-begging. It’s not at all clear that people who have no interest in marriage, who do not actively try to break-up traditional marriages, and who nevertheless engage in non-marital sex acts damage the traditional marital good. They certainly don’t thereby prevent others from realising it, if that is what they wish to do. To suggest that the fact that others treat the marital good as a merely incidental aspect of sexuality will necessarily lead others to do the same is to engage in armchair psychology.

Furthermore, this kind of argument neglects the dilemma involved in either approving or disapproving homosexual relations. There are possible goods that sex acts carried out in committed homosexual realtionships can help to realise (e.g. those listed in part two) that would otherwise not be achieved. Surely, these need to be taken into consideration when deciding what to do? Then again, natural law has never been particularly good at dealing with dilemmatic situations of this sort.


4. The Integrity Problem
Even if non-marital sex acts do no harm to the marital good, there is another sort of damage they may do. They may damage personal integrity. This an argument beloved by Finnis. He says the following: sexual acts that do not realise the marital good are motivated by a desire for gratification (or conscious pleasure); a desire for gratification involves the instrumentalisation of body (i.e. the use of the body as a means to a good, rather than as an element of an intrinsic good); the instrumentalisation of the body leads to the disintegration of body and mind; and this disintegration is necessarily bad.

To put this more succintly and more formally, we say:

• (7) All acts in which the body is used as an instrument for achieving some good are morally impermissible (because they lead to personal disintegration).

• (8) Non-marital sexual acts involve the instrumental use of the body in order to achieve gratification.

• (9) Therefore, non-marital sexual acts are morally impermissible.

With its logic exposed, Finnis’s argument becomes much less tenable.

For starters, (7) is not obviously true. Corvino suggests there may be situations in which the instrumental use of the body is not morally impermissible. He cites an article by Perry in support of this, but since I haven’t read it I can’t say what it contains. I have a suggestion though: suppose there was a fire in an inner city building and suppose the only escape route was to go out through the window of the building and into an adjacent building. Suppose, however, the gap between the two buildings was too wide to jump for a number of small children in the building with you. Now suppose you use your body as a human bridge for these small children to crawl or walk across the gap. Would this be impermissible because it involves the instrumental use of the body? Surely not.

Premise (8) has two flaws. First, the only reason Finnis can say that sexual gratification involves the instrumental use of the body is because he assumes the mind and the body are distinct, that the conscious experiences in the mind are separate from the physical activities in the body. But this is to assume the truth of mind-body dualism, something that he cannot do here. Second, the whole premise rests on a massively impoverished view of sexual phenomenology. As Corvino points out, the idea that outside of the marital context people only engage sexual acts for gratification is almost insulting. People also engage in sexual acts to forge bonds, attain intimacy, and to share experiences. These are commendable things.


5. Turning the Natural Law Argument on its Head
With these three problems identified and described, the natural law version of the PIB argument looks like its in trouble. So much so that one might be inclined to leave it there. But why not twist the knife a little further?

All along, we have been assuming that if heterosexual relations are only permissible because they secure the marital good, it follows that PIB relations are impermissible. But this is not an assumption we are warranted to make. Although, the marital good cannot be achieved in bestial sex acts, it’s possible that it could be achieved in polygamous and incestuous sex acts. After all, its reproductive type acts that seem to matter for the natural lawyer and multi-partner or sibling-sibling sex can be of this form.

No doubt natural lawyers will balk at this, but have they any right to do so? They might demand monogamous commitment, but this — along with the other goods discussed in part two — is ultimately incidental to the marital good. They might also speak in horrified tones about parent-child sex, but this is to focus on the most objectionable form of incest (a form that can be rejected on other moral grounds). What can they object to about sibling-sibling sex?

To be clear, the suggestion here is not that polygamy and incest are permissible, but, rather, that the natural law argument doesn’t actually give good grounds for thinking they are impermissible. Thus, the natural law version of the PIB argument must be deemed a failure.

All of which raises a final question: are there any good grounds for deeming PIB relations impermissible? We’ll answer that in the final part.

Note: All quotes from and references to Finnis are in relation to "The Good of Marriage and the Morality of Sexual Relations".

Corvino on the PIB Argument (Part Two)

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Philosopher John Corvino (from Flickr user yksin)

(Part One)

(NB: For appropriate background and context, please read the introduction to part one.)

This is the second part in my series looking at John Corvino’s article “Homosexuality and the PIB Argument”. In part one, we introduced the PIB argument and followed Corvino in dismissing some of the traditional responses to it. In this part, we look Corvino’s attempt to come up with a better response. Corvino’s project is an important one since the PIB argument is surprisingly popular and it would be nice to be able to dismiss it.

As you recall from part one, the PIB argument is a slippery slope argument. It rests on the idea that once we accept that homosexual relationships are morally permissible, we will also have to accept that polygamous, incestuous and bestial relationships are morally permissible. This is not because of any causal connection between the acceptance of homosexuality and the acceptance of these other relationships, but, rather, because whatever principle we would use to ground the permissibility of homosexuality would also (so the argument goes) logically entail the permissibility of PIB relationships. To put it more pithily and more formally:

• (1) If homosexual relationships are morally permissible, then PIB relationships are morally permissible as well.

• (2) But PIB relationships are not morally permissible.

• (3) Therefore, homosexual relationships are not morally permissible.

As with all arguments of this sort, there are two possible ways to respond: (i) reject premise (1) or (ii) reject premise (2). Since most people wouldn’t be willing to reject premise (2), we’re focussing on rejections of premise (1). We surveyed two such rejections in part one (from Andrew Sullivan and Jonathan Rauch, respectively). We found both to be lacking. Corvino thinks we can do better.



1. A New Strategy
The reason Corvino thinks we can do better is because he thinks defenders of homosexuality have been making a strategic error. To see what he is on about, we begin with a general observation about premise (1). The observation is as follows:

If it is right to say — as premise (1) does — that the moral basis from which we approve of homosexual relationships also requires the approval of PIB relationships, then this is only because the two sets of relationships are analogous in morally significant respects. Conversely, if it is wrong to say the approval of one requires the approval of the other, then this is only because the two sets of relationships are disanalogous in some morally significant respect.

This, in fact, was one of the key messages of part one: if you want to reject premise (1) you must present some reason for thinking the relationships in question are morally disanalogous.

The problem with this message is that it accepts that the burden of proof is on those who reject the PIB argument. Indeed, Sullivan and Rauch tacitly accepted that the burden of proof was on them to prove the disanalogy when they presented their objections. That is why they felt it necessary to point to things like the constitutive nature of homosexual preferences, and the denial of access to loving relationships that were present in the case of homosexual relationships but not in the case of PIB relationships. Corvino thinks they were wrong to accept this burden of proof. They should have realised that the burden is on the defender of the PIB argument to prove the analogy in the first place.

This leads Corvino to propose a new strategy for responding to the PIB argument. The strategy is desiged to reinforce the idea that burden of proof is on the proponent of the PIB argument. Corvino adopts this strategy by making an interesting reverse analogy. The reverse analogy links homosexual relationships to non-procreative heterosexual relationships. The reverse analogy is driven by the idea that whatever makes non-procreative heterosexual relationships morally valuable, will also make homosexual relationships morally valuable.

If Corvino’s reverse analogy works, it changes the entire complexion of the dialectic: the proponent of the PIB argument will then be forced to explain why it is homosexuality in particular, as opposed to nonprocreative relationships in general, that gives his argument its impetus.



2. The Good of Nonprocreative Sexual Relationships
It is generally agreed that some (not all) nonprocreative heterosexual relationships are good (or, rather, are a good). Those who believe that sexual relationships must have the consequence of procreation will disagree, but they are surprisingly few in number. Indeed, even the most ardent of contemporary natural lawyers, like Robert George, John Finnis or Patrick Lee, tends to think that sterile heterosexual marriages are good. So there really does seem to be widespread agreement on this point.

But what is it that makes some nonprocreative heterosexual relationships good? Leaving to one side the answer proposed by the likes of George, Finnis and Lee (this answer will be discussed in the next part), there seems to be a number of positive outcomes attached to such relationships. We could list them as follows: they are pleasurable for the participants; they assist in emotional and personal development; they create stability and security; and they provide fulfillment over an extended period of time.

Now ask yourself, are any of these things necessarily lacking in homosexual relationships? The obvious answer would seem to be “no”. Some homosexual relationships also provide pleasure, opportunities for emotional and personal development, stability and security, and fulfillment over an extended period of time. But if these things are all present in homosexual relationships, then how can we object to them? In other words, why can’t we say — as the proponent of PIB said of homosexuality and PIB relations — that the moral basis for approving of nonprocreative sexual relationships also entails moral approval of homosexual relations? Corvino sees no reason why we can’t.



3. Two Objections to Corvino’s Analogy
There are two obvious concerns one may have about Corvino’s reverse analogy. First, one may contend that the key features of nonprocreative sexual relationships — as listed above — are not really “sexual” at all. That is to say, one could contend that pleasure, emotional and personal growth, security and stability, and long-term fulfillment can be achieved in relationships with no sexual components. As in, for example, a long-term friendship.

Corvino rejects this contention. He thinks there are good grounds for thinking that sexual activity plays a key role in securing the positive outcomes just listed. To be precise, he argues that sexual activity builds, celebrates and replenishes the bonds of love between the two people within the relationship. And since it is these bonds of love that help the participants to attain the positive outcomes associated with their relationships, the sexual element is essential (in support of this he cites the example of sexless marriages being typically unhappy marriages).

Second, one may ask the obvious question: wouldn’t it be possible to achieve all those positive outcomes in PIB relationships too? Well, I suspect there are legitimate doubts to be raised about some of them ( e.g. Are polygamous relationships secure and stable? Do you really develop emotionally and personally through bestial relationships?), but in general this is the right question to ask. Indeed, the whole point of Corvino’s argument is effectively to get you to ask this question. His point seems to that once we understand what is good about nonprocreative heterosexual relationships, we will see that there is no greater reason for thinking that there is a slippery slope from those types of relationship to PIB relationships, than there is from homosexual relationships to PIB relationships.

Of course, this realisation can lead us in a couple of different directions. We could use it as a basis for challenging premise 2 of the PIB argument; or, as Corvino wants us to do, we could use it as a reductio of the PIB argument. After all, if there’s no reason to think there is a slippery slope from heterosexual relationships to PIB relationships, and if homosexual relationships are affirmed for the same reasons as heterosexual relationships, then there can’t possibly be a reason to think there is a slippery slope from homosexual relationships to PIB relationships.

This then is the essence of Corvino’s preferred response to the PIB argument. One difficulty it faces is that the “new” natural lawyers such as George, Finnis and Lee think they can avoid it. We’ll see why in the next part.

Corvino on the PIB Argument (Part One)

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Philosopher John Corvino (from Flickr user yksin)

I’m currently doing some research into natural law and the same-sex marriage debate. This accounts for my earlier post on the impeded function argument against gay sex. This has proved (mildly) controversial in some quarters, but I’m going to persevere with the topic nonetheless. Why? Well, as much as I would personally like the debate to be put to rest (in much the same way as the debate over the morality of slavery has been put to rest) I think we are forced to live through the final stages of this battle. If we sit back and presume that the pro-same sex marriage side will win, we may be disappointed. Thus, I feel that if people are sincerely convinced by (what I think are bad) arguments against same-sex marriage and homosexuality more generally, it is incumbent upon me to point out the errors of their ways.

In that vein, today I’m going to start the first of a series of posts on John Corvino’s article “Homosexuality and the PIB Argument”. Corvino is a philosopher and a gay rights campaigner. He has a number of books, journal articles and columns on the morality of homosexuality. He also does a pretty funny talk on university campuses called “What’s Morally Wrong with Homosexuality” in which he debunks some common arguments against homosexuality. Extracts from this can be found online.

In “Homosexuality and the PIB Argument”, Corvino shows remarkable patience in his analysis and critique of a particularly nasty argument against homosexuality. This is the PIB argument referred to in the title. You rightly ask: what is the PIB argument? Well, if I told you that PIB stands for “polygamy, incest and bestiality” would that make it clearer? It should since there is a remarkable tendency among opponents of homosexuality to equate it with these practices. And it is this that gives rise to the PIB argument.

In the remainder of this post, I will look at Corvino’s initial presentation of the PIB argument, along with his rejection of some of the typical responses to it from defenders of homosexuality. In future posts, we shall follow Corvino in refining the argument and presenting a better response to it.


1. What is the PIB argument?
The PIB argument is a slippery slope argument. It claims that if we permit homosexuality, we will also end up permitting polygamy, incest and bestiality. Slippery slope arguments have a common structure. I discussed this structure once before when looking at Douglas Walton’s work on argumentation schemas, but Corvino presents a slightly more general and less complex version of the same thing. As follows:

• (A) If P then Q, and if Q then R.
• (B) R is unacceptable.
• (C Therefore, P is unacceptable.

The “slippery slope” is here represented by the transition from P to Q and Q to R in the first premise of the argument. In reality, the number of “steps” from the top to the bottom of the slope can vary greatly. Indeed, it is possible to have a slippery slope argument that has just one step, i.e. “If P then Q; Q is unacceptable; Therefore, P is unacceptable”; it is also possible to have a slippery slope argument with a large number of steps. As we shall see in a moment, Corvino’s initial presentation of the PIB argument has just one step.

Far more important that the number of “steps” in the slippery slope, is the connection that is supposed to exist between those steps. As Corvino notes, there are two ways in which to view this connection and they both affect the overall strength of the argument. The first is to view the connection as a causal one. In other words, to say that P causes Q and Q causes R. A slippery slope argument with a causally connected slope is only as strong as is the evidence for the purported causal connections. In many cases, the evidence ends up being quite weak. The second way to interpret the argument is to view the connection as a logical one. In other words, to say P logically entails Q and Q logically entails R. A slippery slope argument with a logically connected slope is much stronger than one with a causally connected slope.

So the question arises: does the PIB argument work with a causally connected or a logically connected slippery slope? Corvino claims that the causal interpretation of the PIB argument has little support. There seems to be no evidence to suggest that people who tolerate homosexuality are more likely to tolerate polygamy, incest or bestiality. What’s more, some proponents of the PIB argument have acknowledged this point. This suggests that the logical interpretation is more plausible, with the idea being that the moral principle from which we derive the permissibility of homosexuality would also logically entail the permissibility of polygamy, incest and bestiality. As follows:

• (1) If homosexual relationships are morally permissible, then PIB relationships are morally permissible as well.

• (2) But PIB relationships are not morally permissible.

• (3) Therefore, homosexual relationships are not morally permissible.

Obviously, there are two ways to respond to this argument. The first is to reject (1) and argue for some morally significant distinction between homosexual relationships and PIB relationships. The second is to deny (2). While there are, perhaps, some sexual libertarians who would adopt this second approach, the vast majority focus their attention on premise (1). In the remainder of this post, we will consider two responses to premise (1) that Corvino ultimately finds unsatisfactory.



2. Andrew Sullivan’s Objection to Premise 1
Andrew Sullivan is a hugely popular journalist and blogger over at the Atlantic . He is also a long-time campaigner for marriage equality. In the course of one his many articles on the topic, he presented what Corvino calls the “gays really exist”-objection against premise (1) of the PIB argument. The objection works off the idea that a preference for homosexual relationships is a deep and constitutive part of a person’s identity, in a way that a preference for polygamous, incestuous or bestial relationships is not.

To put the objection in formal terms:

• (4) If X is a constitutive part of someone’s identity, then it is morally permissible to allow them act in ways that promote or honour X; correlatively, if X is not a constitutive part of someone’s identity, then it is not morally impermissible to prevent them from acting in ways that promote or honour X.

• (5) A preference for homosexual relationships is a constitutive part of someone’s identity; a preference for polygamous, incestuous or bestial relationships is not a constitutive part of someone’s identity.

• (6) Therefore, acting on one’s preference for homosexual relationships is morally permissible, while at the same time preventing people from acting on polygamous, incestuous or bestial relationships is not impermissible.

Therefore, premise (1) is false.

I have to say, in the past, I’ve used something like Sullivan’s response myself when presented with the PIB argument. But Corvino finds it unsatisfactory and I’m fascinated to see why.

As a first step towards dismissing Sullivan’s objection, Corvino identifies three different ways in which to interpret the idea that something is a “constitutive part” of a person’s identity. The first is to view homosexuality as immutable; the second is to view it as central to the homosexual’s self concept; and the third is to view it as being intimately tied up with the homosexual person’s capacity to love. Let’s discuss each in turn.



3. The Immutability Interpretation
The immutability interpretation points to the fact that a preference for same-sex relationships can be a non-voluntary and unchangeable aspect of a person’s identity. This would all seem to be true (despite the claims of fringe groups who try to “cure” homosexuals). It would also seem to be true - although I can’t say for sure - that a preference for PIB relationships lacks this immutability.

The important question is whether the immutability is morally important. And it is here that Corvino finds fault. He points out that the proponent of the PIB argument must draw an analogy between homosexual relationships and PIB relationships. This, after all, is what makes the first premise of their argument work. But two things that are analogous are not going to be similar in all respects. So if we simply point to one difference between homosexual relationships and PIB relationships, it is perfectly possible for the proponent of the PIB-argument to respond with a “so what?”.

Corvino strengthens this observation with an example. Suppose Jack says polygamy and homosexuality are morally equivalent because they both involve the relaxation of traditional sexual norms. Suppose Jane replies by saying “but polygamy is more expensive!” (think of all the gift-giving and anniversary-remembering that must go on). Surely, Jack would be right to say “so what? Expense is not a morally significant variable here”? And since a similar response is open to the proponent of the PIB argument in the fact of the immutability objection, that objection is, according to Corvino, unpersuasive.

I’m actually amazed that Corvino leaves it at that. While I agree that a similar response might be open to the proponent of the PIB argument, he has done nothing yet to show that one actually is. In other words, he has done nothing to show that immutability is not a morally significant variable. I might be able to do his work for him in that I have one reason for suspecting that immutability might not be morally significant. For example, I think it could be true that many paedophiles have immutable sexual preferences (I don’t know for sure) but I don’t think that is a reason for thinking their conduct is morally permissible.

Slight digression : But then what do I say when pressed to distinguish paedophilia from homosexuality? I’ll usually turn to the twin ideas of consent and autonomy: I think adults can enter into whatever sexual relationships they like with one another as long as it is on consensual terms. This distinguishes paedophilia from homosexuality. The problem is, when we return to the PIB argument, although this might allow me to stop the slide from homosexuality to bestiality (since I don’t think any animals are capable of consent), it doesn’t stop the slide from homosexuality to polygamy and incest since both could be entered into on consensual terms. Thus the search for a principled distinction will need to continue.



4. The Self-Concept Interpretation
The second interpretation of Sullivan's argument claims that a preference for homosexual relationships is an important part of a homosexual person’s self-concept, in a way that a preference for PIB relationships is not an important part of the self-concept of those who may be inclined toward them.

Corvino sees two problems with this. First, it is open to the same objection as the immutability interpretation. In other words, the proponent of the PIB-argument can claim that importance to self-concept is not a morally relevant distinction. Second, and perhaps more significantly, they can argue that there is no disanalogy in this respect. After all, polygamy is a central part of (some) religious doctrines and what could be more central to a person’s self-concept than their religious identity? It could also be that incestuous or bestial preferences are thought subjectively essential to the self-concepts of those who have them.

The important point here seems to be that the mere subjective importance of a preference to a person's self-concept is (a) not that difficult to achieve and (b) not clearly morally significant. Thus, if Sullivan’s objection relies on this understanding of “constitutive part”, it would seem to fail.



5. The Capacity to Love Interpretation
The third interpretation of Sullivan's argument is probably the strongest. According to this interpretation, the ability to act upon a preference for homosexual relationships is not just subjectively important to the homosexual, it is essential in order for them to experience love. They cannot experience love in a heterosexual relationship. So to deny a homosexual the right to act upon their preferences would be to deny them the ability to experience one of life’s great goods: love.

Can the same be said about those with preferences for PIB relationships? Corvino thinks not. No one seriously seems to think that those who desire polygamous, incestuous and bestial relations are incapable of experiencing love in alternative types of relationship. Thus to prevent them from acting on their preferences is not to deny them access to a great good.

These thoughts can form the basis of a revised argument against premise (1). We call this the equal options argument because it is simply calling for homosexuals to have the same options open to them as heterosexuals. The option being, of course, the right to have access to one of life’s great goods. This argument is originally found in the work of Jonathan Rauch and replaces Sullivan's argument.

• (7) If it is necessary for someone to do X in order to achieve one of life’s great goods, then X is morally permissible; if it is not necessary for someone to do X in order to achieve one of life’s great goods, then it is not impermissible to prevent them from doing X.

• (8) It is necessary for homosexuals to act upon their preferences for homosexual relationships in order to achieve one of life’s great goods (love); it is not necessary for anyone to act upon their preferences for PIB relationships in order to achieve one of life’s great goods (love).

• (9) Therefore, it is morally permissible for homosexuals to act upon their preferences for homosexual relationships; and it is not impermissible to prevent those with preferences for PIB relationships from acting upon theirs.

Is this argument better than our original formulation of Sullivan’s argument? I have to say I find it reasonably persuasive, but Corvino thinks it's still lacking. As he sees it, this argument is claiming that homosexuals are placed under a burden in not being able to access love. This burden is not shared by heterosexuals and so it is for the burden to be placed on homosexuals. (Note that my version of the argument is not expressed in these distributive justice/egalitarian terms but I think Corvino's subsequent criticism may still apply...)

According to Corvino, the proponent of the PIB argument can respond to this by saying that the reason they group homosexuality with PIB practices has nothing to do with unfair burdens or other extrinsic factors like access to great goods. Instead, the proponent of the PIB argument can say that their lumping together homosexuality with PIB has to do with the intrinsic nature of those practices. It is that intrinsic nature that is morally questionable, not the instrumental role of the practice in securing other morally recognised goods.

So Corvino is unhappy with current responses to the PIB argument. He wants to do better. Can he do so? We’ll see what he comes up with in future posts.

The Impeded-Function Argument against Gay Sex

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[Edit: Since this is being shared on Reddit with the suggestion that I endorse the impeded-function argument, allow me to be clear: in no sense is this to be read as an endorsement of natural law, the impeded function argument, or any other argument against gay sex. This is in fact an analysis and a critique of the impeded-function argument.]

Natural law is a perennially popular brand of meta and normative ethics. It is most closely associated with Catholicism, but has its origins in the work of Aristotle and has been redressed in secular garbs by its most recent proponents. It’s difficult to offer a forty-five second summary of a 2000+ year tradition, but this is my best shot:

The world consists of discrete entities, events, and states of affairs. These entities, events, and states of affairs can be classified according to type (genus, species etc.). Each of these classes has a certain purpose or telos: a function that it is supposed perform or a role it is supposed to fulfill. We belong to the general class of human beings. One of the chief functions of human beings is the exercise of their practical reason, i.e. their ability to reason about means and ends. Through the exercise of their practical reason human beings discover certain basic goods . These are states of affairs that are intrinsically good for them, in light of other aspects of their nature. The goal of ethics is to help them to properly orient themselves to these basic goods. If they engage in activity that compromises or damages these basic goods, they are doing something that is prima facie morally wrong.

I swear that was the best I could do. See here for more.

Anyway, in this post, I want to consider one popular natural law-style argument against homosexual activity. I do so because this is an argument that has gained serious traction in some quarters and it’s worth trying to understand it. I base what I am going to say on an excellent little article that appeared in the Spring 2011 APA Newsletter. The article was “A Critique of the Impeded-Function Objection to Gay Sex” and it was written by Stephen J. Sullivan. It’s a great example of how to do good philosophy in a short space. I wish I could emulate it in my own work…sigh.


1. The Impeded-Function Argument
Go back for a moment to my forty five second summary of natural law. Remember all that talk about basic goods, and functions that ought to performed? How do you suppose natural lawyers apply these concepts to the issue of sex? Unsurprisingly, they tend to argue that the sex organs have a certain natural function, and that any attempt to compromise or impede this function is, at a minimum, morally questionable and, more than likely, morally wrong. No prizes for guessing what that function is.

This gives rise to something Sullivan calls the impeded function argument against gay sex. As follows:

• (1) The natural purpose or biological function of the sex organs is procreation.

• (2) It is morally wrong to impede or otherwise frustrate the natural purpose or biological function of the organs of our body.

• (3) Gay sex impedes or frustrates the procreative function of the sex organs.

• (4) Therefore, gay sex is morally wrong.

There is one very important thing to note about this argument. It has to do with the distinction between impeding or frustrating a biological function, on the one hand, and going beyond a biological function, on the other. When you impede the biological function of an organ you actually prevent it from doing what it is supposed to be doing. When you go beyond the biological function of an organ you merely use the organ to do something in addition to what it is supposed to be doing; you do not prevent it from doing so.

This distinction is important because, as Sullivan points out, too often critics of natural law ignore it. For example, they might point to the fact that many of us - myself included, wear eyeglasses that rest upon the bridge of our noses. Being an appropriate resting place for a pair of glasses is certainly not the biological function of the bridge of the nose. At the same time, we couldn’t possibly think that there was something morally objectionable about wearing glasses. And so the natural lawyer is wrong to see biological function as the standard of moral propriety.

This objection is wrong because it confuses going beyond a biological function with impeding or frustrating a biological function. It is the latter that concerns the natural lawyer, but it is the former that is targetted by the eyeglasses counterexample. So this cannot be a good objection to the natural lawyer. After all, wearing eyeglasses does not impede the biological function of the nose.



2. Counterexamples that Work
If we are to defeat the impeded function argument, we need to come up with proper counterexamples, ones that involve morally unobjectionable scenarios in which we impede the biological function of our bodily organs. Can we do so? Sullivan says his students have been doing it for years, often with more aplomb than professional philosophers. He lists the following as being proper counterexamples to the natural lawyer. I’ll run through them in a little detail:

A. Keeping one’s eyes closed or wearing a blindfold: The biological function of the eyes it to collect light and transduce it into a electrical impulse so that the brain can construct a visual image of the world. By closing your eyes, or by wearing a blindfold, you are actively preventing your eyes from performing this function. But there’s nothing morally objectionable about doing so, is there?

B. Wearing a nose plug or ear plug: The biological function of the ears is to channel soundwaves from the outside world and transduce them into electrical impulses so that we can hear; the biological function of the nose is transduce chemical signals into electrical signals so that we can smell. By blocking up the access passages of both organs, you are impeding the biological functions of both organs. But surely I do nothing wrong by wearing a noseplug when I’m swimming or earplugs when I’m studying? (Actually, I’ve also worn earplugs when swimming so I can do a twofer).

C. Using antiperspirant: The biological function of the pores in one’s armpit is to excrete sweat. This is an essential part of the more general excretory functions of the body. By clogging those pores with antiperspirant, you are once again impeding a biological function. Does this mean that you violate a moral norm when you put on antiperspirant before you go to work?

D. Taking antihistamines when undergoing an allergic reaction: Antihistamines, as the name suggests, stop our white blood cells from releasing histamines. But histamine-release is part of the natural immune response of the human body. It is a way of dealing with invading pathogens. Is the practice of prescribing and taking antihistamines consequently immoral?

E. Administering anaesthetic to inhibit pain: Again, the pain response is a core component of the body’s natural defences. Without the pain response our health would actually suffer (as is clear from studying people who lack a pain response). Anaesthetics are designed to dampen or eliminate our ability to experience pain thereby inhibiting a natural function. So are doctors acting immorally when they administer anaesthetics before surgery?

F. Shaving one’s head or face: I’m actually not entirely sure what the biological function of hair is. I’m guessing it has something to do with keeping the body warm, protecting the skin and other bodily organs from irritants. So in shaving or removing hair we are preventing hair from performing its biological function. Again, is this really immoral?

Sullivan actually lists a couple more examples, but I’ll limit myself to these six. Hopefully, it’s relatively clear how they challenge the impeded-function argument. They do so by directly undermining premise (2). Since I want to draw up an argument map at the end of this post, and since I want the map to be of a manageable size, I’ll summarise all six counterexamples as a single premise:

• (5) It is not immoral to impede the natural function of a bodily organ. This much is clear from how we respond to cases A-F.

3. Likely Responses to these Counterexamples
Of course, we’re not done yet. The wily natural lawyer will undoubtedly be able to come up with some responses to these counterexamples. Sullivan surveys four likely responses.

The first likely response will be to argue for a distinction between activities that temporarily impede a natural function and activities that permanently impede a natural function. The natural lawyer could argue that it’s morally acceptable to temporarily impede a natural function, without it being morally acceptable to permanently impede such a function. This is effectively a revision of the original natural law principle to the following:

• (6) It is morally acceptable to temporarily impede a natural function; it is not morally acceptable to permanently impede a natural function.

Does this response work? Sullivan thinks not. For one thing, it weakens the force of the objection to gay sex. Individual acts of gay sex would not permanently impede the procreative function of the sex organs; only an irreversibly exclusive homosexual lifestyle would be deemed immoral on (6). This is unlikely to appeal to the natural lawyer since they will typically believe that the individual acts are also immoral. This raises a further point. Many natural lawyers object to other non-procreative sexual acts (masturbation, non-vaginal intercourse, use of temporary contraceptive devices etc.) on grounds similar to those used to reject gay sex. But under (6) all of these acts would be deemed morally acceptable too.

• (7) Individual acts of gay sex do not permanently impede the biological function of the sex organs, so they must, contra the natural lawyer, be morally acceptable.

• (8) Non-procreative sexual acts such as masturbation, non-vaginal intercourse and sexual acts involving temporary contraception do not permanently impede the biological function of the sex organs, yet many natural lawyers deem them immoral too.

The second likely response will be to highlight the fact that many organs serve multiple biological functions. This fact can be used to construct a new natural law principle. This principle would maintain that it is morally acceptable to undermine one biological function as long as you leave another intact. For example, the mouth is designed for talking, eating and breathing. By talking, you prevent the mouth from being used for breathing (at least intermittently), but you do nothing immoral by doing so.

• (9) It is morally acceptable to impede one of the biological functions of an organ, provided you do not impede all of its biological functions.

Whether this principle works to explain our reactions to the six counterexamples given above is doubtful, but we won’t focus on that here. Instead, we’ll focus on the more important question as to whether it works to impugn the morality of gay sex. The answer would seem to be “no”. After all, the sex organs could serve multiple functions, some of which are not impeded by homosexual activity. For example, it has been suggested that joint sexual activity (of any kind) helps people to bond together through the release of certain hormones. And since bonding is an important precursor to securing some of the basic goods beloved by natural lawyers (e.g. friendship, and play) it would seem that gay sex should, at least in some instances, be encouraged.

• (10) The sex organs could serve multiple biological functions, some of which would not be impeded by gay sex.

The third likely response will be to argue that it is morally acceptable to impede a biological function, provided that you have other means of performing that function. This would work quite well in explaining our response to the head-shaving case mentioned above. Although hair may serve an important function in keeping us warm and protecting us from the elements, we can achieve both of these ends by wearing hats and other protective clothing.

• (11) It is morally acceptable to impede the biological function of one of your bodily organs, provided that you have are other available means for performing that function.

The problem is that this principle doesn’t work to impugn gay sex either. After all, with the advent of reproductive technologies, and with the probable future developments in that area, homosexuals are not prevented from procreating.

• (12) Homosexuals have other means available to them for procreating.

The fourth and final likely response will be to highlight the different considerations that apply when important biological functions and other morally acceptable goals conflict. For example, in the antihistamine example, although it is true that histamine-release is an important part of the body’s immune response, it is also true that histamine-release can impair the biological functions of other body parts. For example, breathing can often be impaired by allergic reactions. Something similar is true in the anaesthetic case. This suggests that maybe their needs to be some appreciation of tradeoffs incorporated into natural law. I’m going to go with some form of consequentialism:

• (13) It is morally acceptable to impede a biological function if in doing so you facilitate a greater number of biological functions (or basic goods).

How might this apply to the issue of gay sex? Well, it would seem relatively easy for us to argue that despite impeding the procreative function, gay sex facilitates a greater number of biological functions (or basic goods) than would the alternative of heterosexual sex, for at least some people. Sullivan, for instance, argues that homosexuals may not be able to achieve bonding through heterosexual sex acts.

• (14) Gay sex arguably allows some people to achieve a greater number of biological functions (or basic goods) than does the alternative of heterosexual sex. Therefore, gay sex should be morally acceptable.

Okay, that brings us to the end of this post. The completed argument map is below.