Jonathan Jacobs is a Professor of Philosophy and the Director of the Institute of Criminal Justice Ethics at John Jay College, City University of New York. He is the author of nine books, editor of three others, and has published over one hundred articles in several areas of philosophy, including Ethics, Philosophy of Law, Medieval Philosophy, Moral Psychology. and Criminal Justice. He is currently working on issues concerning the aims and justification of punishment in a liberal political order, and the relation between criminal justice and broader conceptions of justice. His most recent book is The Liberal State and Criminal Sanction: Seeking Justice and Civility, Oxford University Press, July 2020.
The COVID-19 pandemic presents several substantial ethical, political, and economic challenges. The present discussion highlights some important aspects of the ethical issues and how they are related to fundamental political issues. I begin with a few general points about moral value and moral judgment. That is followed by discussion of the intersection of morality and the political order. The latter is vitally important; ethical issues arise and are publicly discussed in a liberal democracy in ways that are not tolerated in repressive and authoritarian states. The ethical challenges are equally real in such states but the ways they are addressed are very different, and few of the differences inspire a longing to live under a repressive regime.
Finding Our Footing on The Moral Landscape
There are some points we should mention at the outset because of how important they are to almost everything we will discuss. The first is that we should not assume that, of course, there is only one fundamental moral value or criterion or principle involved in understanding the issues motivated by the COVID-19 pandemic—or morality in general, for that matter. It is plausible to maintain that there are multiple sources or grounds of moral value. Among the plausible candidates we can count justice, autonomy, human welfare, rights, and virtues of character (e.g., fortitude, courage, honesty, compassion, generosity, etc.) Each could be a source of moral value, and attempts to show that all moral value is analyzable into just one value and that all moral judgments refer to a single normative basis encounter serious obstacles and objections. (1)
We need many more than just the concepts right, wrong, good, and bad to articulate moral judgment, experience, and understanding. One act might be right because it reflects the obligation to fulfill a promise. Another act might be right because of its fairness and generosity. A practice might be wrong because it is unjust, and an action might be wrong because of the malicious glee a person took in causing harm to someone. There are many different considerations that can make actions right or wrong. It is not as though there is one principle or criterion that captures and expresses all that is required for moral judgment to be adequate to all the aspects of moral life.
Also, moral issues do not concern only one value at a time. Considerations of autonomy, justice, and compassion might all be relevant to a given situation. Judging the interrelation of values is one of the fundamental tasks of moral judgment. Moral reality is not so tidily organized that for any situation there is a single, easily identified, moral value at issue. What we might call “the complexity of moral reality” makes that quite unlikely. At the same time, however, it often seems that one particular value is the most important in a situation. For instance, we see that a situation calls for courage, or that justice is clearly at stake, or that the failure to be compassionate in such-and-such circumstances is a serious fault. However, even in those cases, other values are likely to be relevant though our perspective has selected a certain focus.
Another feature of moral judgment is that even if one believes that morality is largely a matter of acting on the basis of certain principles, we almost always need to exercise judgment so that we can see how the principles apply. A principle can offer important guidance and can provide us with reasons of a certain kind, but it does not tell us what action to perform or what decision is the right one. Even a principle such as, “persons are always to be regarded and treated as ends in themselves and never merely as means” or “it is always right to impartially maximize human welfare” does not tell us in clear and precise terms what actually counts as doing that in the circumstances. That requires moral judgment.
Given the complexity of moral reality, we might find sometimes that there can be reasonable disagreements concerning how best to be responsive to the values involved. There is no guarantee that morality will never present us with disturbing dilemmas or with situations in which it is impossible to be fully responsive to all of the values we recognize as relevant. The clarity of a fundamental principle is always preferable to a lack of clarity but even a clear principle can run up against circumstances that frustrate every attempt to arrive at a single, clear conception of what the principle requires.
It might be supposed that these challenges all become much less formidable if we take the view that, “everyone has their own morals” or “there are no bases for justifying moral views.” These views seem to be widely held, and we can understand some of what might lead people to endorse them, but each of them is false and very unhelpful. The first has some plausibility if what we mean is that no matter how objective or how rationally supported moral considerations might be, if people are not subjectively committed to acting rightly, moral reasons will not count for much. But that is not what is generally meant. What is often meant is that there is nothing more to moral values than unreasoned preferences or expressions of attitude.
Such views render moral reflection and argument pointless, being little different from a preference for peach over cherry ice cream. We cannot argue someone into liking the flavor of something they don’t like. However, we can give reasons why it is not morally acceptable to spray lighter fluid on homeless persons and set them on fire, and we can give reasons for why generosity and compassion are virtues and why callous, cowardly unconcern is a vice. Perhaps some malicious person is unmoved by the reasons. That is evidence of the depth of their malice, not the weakness of the reasons. If, literally, everyone had their own morals, morality would dissolve into unreasoned matters of taste in such a way that even for the individual who endorses specific values, there would be no reason to do so. Rather than supporting moral autonomy, this results in unreasoned moral vacuity. If someone believes that kidnaping newborns from the hospital nursery is perfectly acceptable, it is not right for her and wrong for us. She is wrong because the action is wrong. (We don’t simply think, “Gosh, people have such an interesting diversity of moral views.”)
With regard to the supposed absence of justification of moral claims, we can see what might lead people in that direction despite the fact that this claim, too, is mistaken. There is a widely shared presumption that all knowledge is (or can only be) factual (or scientific) knowledge, and only factual matters—which do not include moral judgments— can be justified. Numerous complex issues are involved in addressing such claims in a full-fledged way. (2) Here we have space for just some brief remarks, but they will suggest the direction a larger response might pursue. First, the claim that all knowledge is scientific knowledge is itself not a scientific claim; it is a claim about what kinds of normative authority there are concerning epistemic justification. In making it, we have already left the context of the sciences.
In addition, the notion that there is a clean-break between facts and values is actually surprisingly difficult to support. For one thing, why could there not be moral facts? For example, consider the claim that taking pleasure in needlessly causing a sentient creature to suffer is wrong. That seems a plausible candidate for being a moral fact. (3) Maybe we want to distinguish moral values from facts of the sort that the sciences discover, explain, and integrate into systematic accounts. But that does not imply that values are subjective, or merely emotive, or not supportable by rational justification. Nor does it imply that facts cannot have ethical significance. There seem to be a great many moral judgments that show every sign of being rationally justifiable, even if in showing that, we are not doing exactly the same thing as when we show that a particular disease is caused by a virus and not by a bacterium, or that there is no highest prime number. (4)
The fact that there remain moral disagreements indicates that there is a crucial role for careful moral reasoning, not that there is no such thing as better or worse moral reasons.
In some cases, it is difficult to ascertain what is the soundest view, and some conflicts of values resist resolution. There clearly are differences between justified and unjustified moral views. This is not the place to elaborate an account of the justification of a moral judgment but even in everyday contexts, outside of the context of philosophical argument and analysis, we recognize some persons as having better moral judgment than others, and some moral views as untenable or even indefensible. The fact that there remain moral disagreements indicates that there is a crucial role for careful moral reasoning, not that there is no such thing as better or worse moral reasons.
People often point to the fact of moral disagreement—indeed the many facts of moral disagreement—across cultures and societies, and even within a given culture or society, as a basis for endorsing relativism with respect to morality. This issue, too, can be put aside. For one thing, that there are moral disagreements is not unambiguous evidence in favor of relativism. Much can depend on what explains the disagreement. There are disagreements in contexts in which it is widely (and appropriately) held that there are objective considerations; but we might not have them clearly in view or our theories might be inadequate in various respects; or we are only in the early stages of making progress in a given investigation, and so forth. Also, it is a mistake to suppose that where there is disagreement there can be no fact of the matter. Even if there is a fact of the matter, there could be many reasons accounting for lack of agreement, and even persistent disagreement.
Relativism claims that moral judgments are correct or mistaken only relative to the values and principles a specific group happens to accept. Accordingly, it should provide some account of what are the relevant groups. This is problematic. Any individual is a member of a huge number of groups; which are the ones that are morally relevant? Is that to be determined by each individual for him-or-her-self? That is quite unsatisfactory, and it could render the giving of reasons and the scope of the relevance of reasons chaotic. Also, if it is perfectly acceptable to change one’s moral-group identification as often as one likes, and for whatever reasons one wishes that is not relativism, it is incoherence. Do we each have any number of moralities on account of belonging to any number of groups? Does one need to remain a member of a group for a certain minimum period? Anyway, on relativist terms there is no more rational authority to the endorsement of norms and values than the fact that some group endorses them. There is no reason for anyone else to regard those values as having any weight or validity. In fact, there is no reason even for the group that endorses them
When we encounter (or think about) people very unlike ourselves, and cultures unlike our own part of our interest in understanding them and their cultures is that we want to comprehend the ways people anywhere are participants in a common moral world. Interaction might be difficult, lacking in trust, complicated by misunderstandings and so forth. Still, they (and we) are people, not people-like creatures of some other kind. In that sense there are bases for seeking fuller moral intelligibility of the ‘other.’ In addition, a society can undertake a process of reflection and criticism, and a change in views can be an improvement or a worsening in moral understanding, rather than just a change. No society is in possession of complete knowledge of moral value and able to make faultless moral judgments. But that does not condemn moral thought to nothing better than “who’s to say?”
In The Subject of Virtue, anthropologist James Laidlaw remarked that many empirical accounts of morality are such that “moral responses are explained by basic general requirements of social life and the nature of human emotions…” (5) He noted that many thinkers regard the view as congenial to relativism; “they claim that the facts of moral relativism—the evidence they take from anthropology of deep divergences between cultures in emotional responses and moral attitudes—support their naturalistic arguments…”. (6) He went on to argue that a mistaken relativist conclusion is often drawn from the investigation of differences in moralities, and that “relativism is, in any case, an incoherent solution to a non-existent problem…” (7) With regard to explanatory content much more is to be gained by regarding moral reality as complex and non-obvious, eliciting a diversity of judgments and perspectives. Trying to explicate the various justificatory considerations to which people appeal is a much more illuminating project than compartmentalizing moral ‘systems’ in a relativist manner.
Morality and Politics
We turn now to some of the important questions concerning the relation between morality and law (or politics). An important aspect of a liberal-democratic political order (such as in the U.S. and numerous other countries) is that the state does not impose or enforce some specific overall view of morality or a specific conception of how people are to live. (8) Much of criminal law is supported by the fact that certain forms of conduct are criminalized because there is wide agreement that they are morally wrong e.g., murder, kidnapping, blackmail, arson, and so forth). However, much that criminal law addresses is prohibited because it is judged to be harmful whether or not it is also morally wrong. A law should not be morally objectionable but not all law is an attempt to enforce morality. (9) That would be oppressive in the extreme, and liberal democracy is a political order meant to free persons from that sort of oppressive state.
Not everything that is prohibited is morally wrong, and certainly, not everything thought to be morally wrong is prohibited. If, after years of a very close friendship and being honest and open with each other and mutually supportive, you betray that friend in a significant and very hurtful way, it is morally wrong. However, the law has nothing to say about it. It has things to say about contracts and various other formal agreements, but not about friendship.
Not everything that is prohibited is morally wrong, and certainly, not everything thought to be morally wrong is prohibited.
The law is rarely in a fully settled state, all disputes having been resolved. Likewise, no single view of morality becomes the fixed, unquestioned, fully comprehensive moral doctrine for a nation. There is almost always the need for compromise and toleration. There are numerous disputed matters, such as abortion, various types of drug use, capital punishment, and certain sexual practices and preferences. Some issues are perennially disputed and are connected with moral controversies. Also, the prevailing attitudes regarding many issues are different at different times. Consider how views regarding same-sex marriage have changed during the last thirty years. There are many people who consider that practice morally abhorrent but as a matter of law, its status has changed. Consider the differences in views regarding race in 1915 in contrast to 2015. These examples are not evidence for relativism but for changes in moral perspective and understanding. Moreover, there is no guarantee that change is always for the better.
There is a conflict now in the U.S. between recommendations made by experts on infectious disease and public health on the one hand, and numerous politicians, journalists, and members of the public on the other. One sees editorials about how wrong it would be to sacrifice our political freedom on the basis of (possibly politically motivated) advice from unelected persons—even if they have the positions they have on the strength of their scientific and public health expertise. In a liberal democracy there are likely to be numerous conflicts between what people regard as legitimate matters of individual liberty and what is regarded as a matter of the interests of society. Public health issues often involve some tension of that kind. People’s rights and liberties are not unrestricted and there are various ways that they can be limited justifiably. Not everything is a matter of individual discretion.
A great many people are thinking, “I have got to get back to work as quickly as possible; I cannot afford to put my life on hold while the scientific community and policy analysts figure out how best to minimize the risk to the public. The risk to my livelihood is real and is taking a toll right now.” Moreover, one might observe that substantial numbers of persons doing jobs deemed essential are working and that has not seemed to be a public health disaster. If we are concerned with individuals’ liberties and their welfare and the welfare of society, what should we do? This surely is not an issue we should just put to a poll, count the votes, and base policy on that result. This is not, for example, comparable to Brexit. Whatever one’s view about the advisability or inadvisability of Brexit and the wisdom or not of addressing it via a referendum, it is possible to see why many people thought that a referendum was the appropriate approach. The question of responding to the pandemic differs in important ways.
Responding to the pandemic is not an exclusively political matter, nor an exclusively economic or moral matter. It is an issue requiring very careful judgment that integrates a variety of considerations, none of which is simple even taken on its own. It certainly makes sense to ask: Given what is known about the virus now, and given what is known about how to minimize its spread and its lethality, what are the most effective measures for minimizing the risks associated with it? Yet, that does not mean that the only morally sane thing to do would be to take into account only those considerations and leave aside all sorts of others. Is a badly damaged economy and its consequences for large numbers of people a worse outcome than large numbers of very sick persons, or a second wave of the virus?
We need to take into account multiple factors, including (i) considerations of public health and medical risk, and (ii) considerations regarding possible limitations of liberties because of public health concerns, (iii) considerations of national economic health and the ability to rebuild employment, commerce, manufacturing, and the provision of all manner of services, and (iv) considerations of prevailing popular sentiment. The political order is democratic in important respects and popular attitudes matter though we don’t resolve every disputed, complex issue by taking a vote.
Not everything that is prohibited is morally wrong, and certainly, not everything thought to be morally wrong is prohibited.
It won’t do to say that if people are willing to take certain risks (say, to abandon distancing and get back to work without distancing) they are (or should be) free to do so. It might be that the vast majority of very drunk drivers do not crash and do not maim or kill other people but we don’t leave it up to them to decide whether to drive or not. The law says they should not, and they will be subject to sanction if they do drive. Granted, drunk-driving and the virus involve different forms of risk but even informed and well-meaning persons could spread the virus to others without intending to do so. There is at least that much of an analogy.
Whether or not one includes ethical presuppositions and implications explicitly in formulating one’s view, the view will unavoidably involve them. One cannot be freed of responsibility for them by not attending to them or by insisting that one’s view is purely economic or strictly political. It is possible to provide a strictly economic analysis of aspects of the pandemic but that will not in its own right resolve the normative questions about what would be the right thing to do. One could provide a strictly political analysis and the same would be true of that. Saying nothing about the ethical issues does not silence them. There isn’t a way to shrink or eliminate them. Any policy, any approach that involves a view about what the state should do, and about what individuals should do has implications concerning possible harms to others and concerning the scope of persons’ liberties. In that way, complex ethical issues are unavoidable.
There are important debates concerning the primary responsibility of political leaders. Is it to preserve conditions in which individuals are best able to exercise their liberties and live their lives as they choose? Is it to maintain the rule of law, the integrity of institutions and the processes of democratic political participation? Is it to maximize the welfare of society and promote the overall standard of living? Is it some combination of those? If our answer is to be more than one or another version of cheerleading rhetoric, it needs to be articulated with care and precision. The pandemic has created a massive increase in demands on the public treasury, and one could argue that providing for the public treasury requires people going back to work sooner rather than later. Should the urgency of the economic issues override the possibility of serious increase of risk to health and the associated costs? If public health is in a parlous state, then exercising our freedoms could just make us more vulnerable to even worse consequences. What if the current quarantine practices weaken the country in ways our adversaries are glad to exploit? Such matters of strategic national interest should also be included in our reasoning. In many cases the impact of policy choices extends well beyond the particular issue being addressed with consequences for people’s liberties and the general welfare.
We cannot just pick and choose which issues to regard as significant and in what ways. Inattention is not an effective strategy of risk-reduction. The ethical issues of the pandemic are numerous, diverse in type, and interrelated in several ways. This does not mean political leaders need to be moral theorists. But they and other public officials, journalists, shapers of opinion, and members of the public all need to recognize that politics that cannot be bothered with ethical concerns won’t have much regard for the values integral to liberal democracy. Ethical issues are pervasive in our current circumstances. There is probably no single resolution that is responsive to all of the relevant values in an entirely satisfactory way. That does not mean we can safely drop some of the issues. Even making some other considerations the priority—e.g. economic considerations—is itself an ethically significant choice. Anyone in a position of authority who feels inclined to bypass ethical judgment as a distraction, or insists that there is one value consideration that has clear priority over all others should be willing to tell us what, then, anchors their commitment to liberal democracy.
1. This is a complex issue and there is a vast philosophical literature on it. It is handled very swiftly here but there are numerous arguments and insights in favor of the view presented. Similarly, for the issues in the paragraphs directly following mention of this issue.
2. There is a very large literature on this issue. During the first half of the twentieth century when Logical Positivism was in ascendance, this view of the primacy of scientific knowledge was widely defended. A destructive, many-pronged critique of Positivism over a period of decades made a strong case for the untenability of its epistemology.
3. Granted, this is dealing with the issue very swiftly. An account is needed of the relation between moral considerations and naturalistic facts and properties. But very plausible analyses of that issue have been elaborated. That is not an insurmountable problem.
4. I realize that these are philosophically disputed claims. I also believe there are very strong grounds in favor of them. In any case, the notion that a fact—that such-and-such is the case—could not have moral significance, seems very implausible. Moral life isn’t lived in some sphere unconnected with the rest of our lives. It is the facts of life, as it were, that morally matter in all sorts of ways.
5. James Laidlaw, The Subject of Virtue, Cambridge: Cambridge University Press, 2014, p. 21. Laidlaw’s treatment of morality is especially interesting because he has long experience studying it as an anthropologist and in his reflections on his investigations he arrives at conclusions at odds with some very widely and long held views among social scientists.
6. Ibid., p.21.
7. Ibid. p. 25.
8. “Liberal democratic” as a form of political order means that individuals have extensive rights and liberties, and there are numerous, meaningful ways for citizens to participate in politics and the political process. “Liberal democratic” in this context does not imply progressive, or in favor of an expanded state or minimizing economic inequality.
9. I discuss these issues at length in The Liberal State and Criminal Sanction: Seeking Justice and Civility, Oxford University press, July 2020.
Further Reading: Dimensions of Moral Theory: An Introduction to Metaethics and Moral Psychology, by Jonathan Jacobs; Essays on Moral Realism, edited by Geoffrey Sayre-McCord; Virtues and Vices and Other Essays in Moral Philosophy, a collection of works by Philippa Foot.
IMAGE SOURCES: Creative Commons
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