Typically, the question of the basis of moral equality is associated with the justification of equal fundamental rights to a certain range of beings (Carter 2011, p. 539; Rawls 1971, p. 504; Sangiovanni 2017, pp. 101–102): in virtue of what can A and B be said to have equal fundamental rights? This is the question that an account of moral equality is usually expected to answer. Accordingly, it seems reasonable to maintain that an account of moral equality should be able to provide what I have called a fundamental rights justification (FRJ).
This section examines the conceptual relation between the ground of moral equality and its justification; in particular, I argue that a FRJ is only compatible with property-first accounts. This has two important implications: first, it suggests that Sangiovanni’s view may be internally inconsistent: this is because on the one hand Sangiovanni wants to offer a FRJ (pp. 101–102) but, on the other hand, he maintains that moral equality should not be grounded in the equal possession of a status-conferring property that confers equal value upon its holders; second, more generally, this entails that relation-first approach is not a serious contender of property-first accounts for the justification of moral equality because it does not have the theoretical resources to capture its most fundamental aspect.
To defend these two claims, I proceed as follows: first, I clarify the concept of a FRJ; second, I investigate what, according to Sangiovanni, grounds the duty to refrain from acting in a socially cruel manner; finally, I show that relation-first accounts cannot ground a FRJ.
To elucidate the concept of a FRJ, it will be instructive to introduce the distinction between directed and undirected duties. Take these two different duties: (A): “Matthew has a duty to help Lara”; (B): “Matthew has a duty to help the world’s needy”. (A) and (B), respectively, represent two standard instances of directed and undirected duty. The main difference between the two consists in the fact that only the former, but not the latter, is owed to someone in particular. The direction of duties is relevant for, at least, the following two reasons: first, ‘directed duties are at the heart of rights’ (Cruft 2013, p. 201): Matthew’s duty to help Lara entails that Lara has a claim-right against Matthew to be helped.Footnote 10 On the contrary, from the fact that Matthew has a duty to help the world’s needy it does not necessarily follow that they have a claim-right against Matthew to be helped.Footnote 11 Second, this means that only violations of directed duties entail wronging, whereas violations of undirected duties imply wrongdoing (May 2012, p. 113)Footnote 12: this is because if Matthew does not help Lara, then Matthew wrongs her for he has violated her right to be helped; instead, if Matthew does not help the world’s needy, Matthew is simply doing something wrong, but he is not wronging anyone in particular, insofar as no one’s right has been violated.
The triadic relation between directed duties, rights, and wronging is well explained by F. M. Kamm: ‘[f]or to claim that you have a right to be helped by me … is to claim that I have a directed duty to you (as subject), so that if I do not act I would not only be acting wrongly, I would also wrong you’ (Kamm 2007, p. 244). A FRJ, then, is the kind of justification which can account for the idea that if A and B are moral equals, then A and B have equal fundamental rights.
At this point, the question that needs to be addressed is the following: what kind of ground is compatible with a FRJ?
To begin with, few, I think, would deny that property-first accounts can ground a FRJ. As we have seen, this approach starts from a property, which bestows value on its holder. More specifically, the core idea is that in virtue of the possession of a specific property, B is valuable and B’s value generates duties on A to respect B’s rights. To put it differently, B’s value entails that A has directed duties to B, that is, duties that are owed to B for B’s own sake, regardless of any further consequences.
Can the relation-first approach similarly account for a FRJ? As has already been discussed, this approach states that equal moral status should be grounded in the rejection of moral inequality. In particular, Sangiovanni’s account maintains that the basis of moral equality is to be found in the rejection of social cruelty. In the previous section, I have suggested that even if we have a duty to refrain from acting in a socially cruel manner, to ground moral equality in such a duty gives rise to implausible conclusions. I now want to examine what grounds our moral imperative not to be socially cruel.
A natural way to start our enquiry is to recall Sangiovanni’s definition of social cruelty: ‘the unauthorized, harmful, and wrongful use of another’s vulnerability to attack or obliterate their capacity to develop and maintain an integral sense of self’ (p. 76, emphasis in the original). To maintain that social cruelty is wrong insofar as it constitutes an attack on, or an obliteration of, one’s capacity to develop and maintain an integral sense of self, however, is hardly enough to ground a prohibition against social cruelty: something more must be said on why attacking or obliterating one’s capacity to develop and maintain an integral sense of self is wrong. And, here the wrongness seems to lie in the fact that such a capacity is extremely valuable to, or for, us; indeed, as we have seen in section 1, Sangiovanni maintains that the capacity to develop and maintain an integral sense of self is intrinsically valuable because it is a constitutive part of all the most important human goods (p. 81). In short, then, Sangiovanni contends that ‘the individual interests underlying our sociability [that is, our capacity to develop and maintain an integral sense of self] are so important that they ground a set of third-party duties not to treat with inferiorizing social cruelty’ (p. 101).
Accordingly, in a more formal manner, Sangiovanni’s argument for the ground of the rejection of social cruelty can be reconstructed as follows:
‘Social cruelty is (pro tanto) wrong because it is a harmful attack on or obliteration of another’s capacity to develop and maintain an integral sense of self’ (p. 76, emphasis in the original);
An integral sense of self is valuable because it is a constitutive part of all the most important human goods (p. 81);
Therefore, A has a directed duty to refrain from treating B with social cruelty because this would violate something of great value to, or for, B.
The problem with this line of reasoning, I argue, is that (3) is not sufficient to yield a normative prescription: it is unclear why from the fact that B has an interest in X – that is, from the fact that X is of great value to, or for, B – it follows that B has a right to X against A.
To see this, consider the following case of social cruelty. Being the chief executive officer of a big company which makes millions of dollars a year, Thomas has great power over his employees, and he uses his position to demean and hurt his personal assistant, Susan, by, among other things, using abusive language and sending her offensive emails. What we want to understand is why Thomas failed in his directed duty not to be socially cruel to Susan. As we have seen, Sangiovanni argues that this is because Thomas’s behaviour resulted in an attack on, or obliteration of, something that is of great value to, or for, Susan – i.e., her capacity to develop and maintain an integral sense of self. However, what I am suggesting is that (i) “X is of great value to, or for, B” does not entail that (ii) “A has a directed duty to B to X”. Thomas, then, can respond to Sangiovanni’s accusation by pointing out that it is not enough to show that his actions violated something that is of great value to, or for, Susan; it must also be shown that Susan is valuable for her own sake to demonstrate that he owed something to her in the first place. In other words, what I am claiming is that while what is of great value to, or for, Susan may be a good indicator of the kinds of rights that Susan can have, it cannot be cited as a reason for why Susan has, or can have, a right in the first place. To paraphrase J. D. Velleman, what is good for, or what is of interest to, Susan, it need not matter unless Susan matter (Velleman 1999, p. 611).
Sangiovanni’s criticism of Velleman’s property-first account becomes relevant to our discussion here. Very briefly, here is how Sangiovanni reconstructs Velleman’s (1999) argument:
We believe that either our good or others’ good matters, therefore we claim that this should be the object of concern;
A person’s good matters if and only if a person matters for her own sake;
The value of the former is conditional on the value of the latter;
Therefore, (i) the person has value independently of what has value for her; (ii) the value of the former is incommensurable with the value of the latter; and, (iii) the value of the former is higher than the value of the latter. (p. 44)
To begin with, it should be noted that I need not defend Velleman’s argument per se; accordingly, I need not take a stance on (D).Footnote 13 For our purposes, it is important to assess Sangiovanni’s criticism of (B).
Now Sangiovanni claims that ‘the argument only succeeds by assuming that there must be a bearer of value – a person, understood as a being with a rational nature – separate from the particular cares and concerns that make up a human life and for the sake of which we act’ (p. 45, emphasis in the original). Nothing, however, requires us to assume that ‘our rational nature as such can be bearer of value apart from our flourishing’ (p. 45).
If Sangiovanni’s objection is that nothing in Velleman’s argument requires us to accept that our rational nature is the specific interest-independent value that grounds the value of our flourishing, then he seems to me right on this point. This, however, does not concern us here. What is at stake is not whether our rational nature in particular can ground the value of our flourishing, but whether the latter, which is interest-relative, must be based on an interest-independent value in general – we are not questioning what interest-independent value can ground the value of our flourishing, but whether such a value must be presupposed. But if this is the case, I do not see how we can avoid making this assumption: if A owes to B to do X, there must be something about B for its own sake which generates a duty on A to do X. There is a leap from “X is of great value to, or for, B” to “B has a right to X” that is in need of justification. In particular, it is not clear where the normative force comes from: unless Thomas has a reason to be concerned with Susan for her own sake in the first place why does he owe to Susan to respect, or promote, something that is of great value to, or for, her (e.g., not being sexually harassed)? To this question, I argue, only property-first accounts can provide an answer.
Sangiovanni’s view, then, runs against a dilemma: either he grounds moral equality in the equal possession of a specific property, but this means that his view is just another version of the property-first approach, which is the approach to moral equality that Sangiovanni rejects; or, he grounds moral equality in a general duty not to treat others as inferiors, but this is inconsistent with a FRJ, which is the kind of justification that, Sangiovanni believes, an account of moral equality should be able to provide. Whichever horn of the dilemma he chooses, Sangiovanni seems to fail to do what he set out to do.
Let me conclude by briefly analysing how a FRJ is fundamentally incompatible with the relation-first approach. To do this, it will be instructive to examine what I am not claiming. I am not claiming that A can have a duty to satisfy B’s interests if, and only if, A has reasons to care about B for its own sake.
After all, it seems undeniable that A may have a duty to respect, or promote, B’s interests even if A has no reasons to care about B for its own sake. So, for example, one may say that social cruelty is wrong because it attacks or obliterates something extremely valuable to B; however, A’s duty not to be socially cruel to B does not have to presuppose B’s value, or worth, insofar as it can be grounded in a consequentialist imperative to refrain from bringing about a state of affairs which involves social cruelty. Alternatively, we can also imagine a deontological view which, similarly, holds that the rejection of social cruelty is grounded in the wrongness of causing a state of affairs which involves social cruelty; this duty, however, would not require minimising the level of social cruelty, but it would command not to treat anyone in a socially cruel manner yourself.
What must be noted is that while both these versions of the relation-first approach do offer a reason as to why A has a duty not to violate what is of great value to, or for, B which is independent of B’s value, or worth, neither of them is compatible with a FRJ. Let me explain.
As to the consequentialist version of this justification, it is easy to see why this is the case: A’s claim not to be treated as inferior is conditional upon whether not treating A in a socially cruel manner will lead to a state of affairs in which there will be no social cruelty (or, at least, the level of social cruelty will be lower than what would have been if A had been treated cruelly). But this, as many commentators noted, is not what a right is about: for A to have a right not to be treated socially cruelly A’s claim to such a treatment must be respected independently of its social consequences.Footnote 14
The deontological version of the relation-first approach is equally unable to account for a FRJ. To see this more clearly, H. L. A. Hart’s discussion of the Ten Commandments might be instructive (Hart 1955). Hart points out that if, in violating one of the Ten Commandments, A harms B, it is wrong to conclude that A has thereby violated B’s rights, since it would be misleading to maintain that B had any rights against A in the first place. This is because, in this scenario, A’s duties are owed to God; B is only the object, but not the subject – or, alternatively, B is only the focus but not the source (Buchanan 1987, p. 52) – of A’s duties, insofar as it is not for the sake of B that A has a duty not to harm her. Hence, in harming B A is wronging God, but she is not wronging B (Hart 1955, p. 182). Similarly, if what grounds the rejection of social cruelty is merely the fact that A should not treat anyone with social cruelty herself, then if A is socially cruel to B, she is not wronging B – that is, she is not violating B’s rights – but she is simply doing something wrong.
All in all, it seems reasonable to maintain that there might be versions of the relation-first approach that can justify A’s duty not to violate something that is of great value to, or for, B without having to presuppose B’s value; however, neither of these versions can justify A’s directed duty to B. Therefore, these accounts cannot ground a FRJ, namely: they cannot vindicate the idea there is a range of beings that has equal fundamental rights. But this, as we have seen, is exactly what we want from an account of moral equality. For this reason, I conclude that the relation-first approach does not offer a persuasive justification of the principle of moral equality.